author: Burke, J.

text:
    Emidio Rufo, Respondent, v. Anthony J. Orlando, Doing Business as A. J. Orlando Contracting Co., Appellant and Third-Party Plaintiff-Appellant. Northcrest Gardens Corp., Third-Party Defendant-Respondent.
    Argued October 10, 1955;
    decided December 1, 1955.

      John P. Carson and Mattheio E. Lawless for appellant and third-party plaintiff-appellant.
    I. No liability rests upon appellant by reason of the fact that his work was completed, accepted, and paid for fifteen days before the occurrence of the accident, and the premises were at the time of the accident completely under the ownership, management and control of third-party defendant-respondent. (Bergen v. Morton Amusement Co., 95 Misc. 647, 178 App. Div. 400, 226 N. Y. 665; Swan v. Jackson, 55 Hun 194; Mayor of City of Albany v. Cunliff, 2 N. Y. 165; Miller v. Davis & Averill, 137 N. J. L. 671; Smith v. Claude Neon Lights, Inc., 110 N. J. L. 326; Del Longo v. Bennett-Brewster Co., 192 Misc. 426.) II. If, for any reason known to the law, appellant has been validly held liable for the accident, the judgment of the Appellate Division as to the third-party complaint should be reversed and the judgment of the trial court, based upon the jury’s verdict herein, should be reinstated. (Howe v. Buffalo, New York & Erie R. R. Co., 37 N. Y. 297; Zimmermann v. Weber, 135 App. Div. 428; Herman v. Leland, 80 Misc. 598; Admiral Oriental Line v. United States, 86 F. 2d 201; People ex rel. Van Keuren v. Board of Town Auditors of Town of Esopus, 74 N. Y. 310; Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, 298 N. Y. 686; Rager v. McCloskey, 305 N. Y. 75; Wheelock v. Noonan, 108 N. Y. 179; Capel v. Lyons, 3 Misc. 73; Wischnie v. Dorsch, 296 N. Y. 257; McFall v. Compagnie Maritime Belge, 304 N. Y. 314.) III. Prior to the trial, the Appellate Division unanimously affirmed an adjudication by Special Term that the third-party complaint herein stated a valid cause of action for recovery against third-party defendant-respondent (Rufo v. Orlando, 282 App. Div. 934). Therefore, it would seem that if the substantial allegations of the third-party complaint were established, the law of this case has already been declared. IY. The cases relied upon in the majority opinion of the Appellate Division, Walters v. Rao Elec. Equipment Co. (289 N. Y. 57), and Semanchuck v. Fifth Ave. & 37th St. Corp. (290 N. Y. 412), dealing with the positive provisions of section 241 of the Labor Law, are inapplicable. (Schumer v. Caplin, 241 N. Y. 346; Teller v. Prospect Heights Hosp., 280 N. Y. 456; Burris v. American Chicle Co., 120 F. 2d 218; Underhill v. Major, 220 App. Div. 173, 247 N. Y. 525; Lee v. Trefflich, 272 App. Div. 255, 297 N. Y. 772; Wischnie v. Dorsch, 296 N. Y. 257; Richardson v. Cannold Holding Corp., 283 App. Div. 789, 308 N. Y. 932; McFall v. Compagnie Maritime Belge, 304 N. Y. 314.)

      Benjamin H. Siff and Martin I. Weiss for respondent.
    Appellant having affirmatively created a dangerous excavation which it knew was going to be utilized by other contractors in subsequent work, is liable for injuries caused thereby to an employee of such subsequent contractor. (Harriman v. New York, Chicago & St. Louis R. R. Co., 253 N. Y. 398; McGlone v. William Angus, Inc., 248 N. Y. 197; Quigley v. Thatcher, 207 N. Y. 66; Clemens v. Benzinger, 211 App. Div. 586; Bill v. New York Expanded Metal Co., 60 App. Div. 470; Wittenberg v. Seitz, 8 App. Div. 439; Haverstick v. Hansen & Sons, 277 N. Y. 158; Brown v. Welsbach Corp., 301 N. Y. 202; Adams v. White Constr. Co., 299 N. Y. 641; MacPherson v. Buick Motor Co., 217 N. Y. 382; Devlin v. Smith, 89 N. Y. 470.)

      1. Sidney Worthmün and Harold M. Harkavy for third-party defendant-respondent.
    I. The jury, by its verdict in favor of plaintiff, established that appellant was guilty of affirmative negligence. Hence, appellant, as an active primary wrongdoer, was barred from any right of indemnification from third-party defendant-respondent. (Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; McFall v. Compagnie Maritime Belge, 304 N. Y. 314; Middleton v. City of New York, 300 N. Y. 732; Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N. Y. 412; Walters v. Rao Elec. Equipment Co., 289 N. Y. 57.) II. Appellant is not entitled upon this appeal to invoke the doctrine of the law of the case before this court with reference to the adjudication concerning the validity of the third-party.complaint. (Gracie Square Realty Corp. v. Choice Realty Corp., 305 N. Y. 271; Hornstein v. Podwitz, 254 N. Y. 443.)
   Burke, J.

The plaintiff, a laborer employed by the third-party defendant, Northcrest Hardens, Inc., was injured as the result of the collapse of an embankment of an excavation dug by the defendant Orlando, while the plaintiff was working in the excavation.

Orlando had agreed orally with Northcrest to excavate the land for a foundation for stores. Orlando was required to supply the power shovel, four trucks and a tractor, and the workmen. The excavation, after the work had been completed was approximately twelve feet in depth, and the top of the embankment extended approximately four feet beyond the edge of excavation. The work was completed on November 30, 1948, without the use of shoring or bracing materials. Two weeks later, on December 15, 1948, the embankment collapsed.

The plaintiff maintained this action against Orlando, who in turn issued a third-party complaint against Northcrest, on the theory that he was entitled to indemnification should he be held liable in the original action. The trial court charged the jury that former section 23-4.4 presently section 23-11.3 of the Rules of the Board of Standards and Appeals issued in accordance with the statute, required shoring of embankments in excavations of five feet or more when the circumstances require.

Section 241 of the Labor Law states:

‘ ‘ All contractors and owners, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: * * *
“ 6. .The board of standards, and appeals may make rules to provide for the protection of workmen in connection with the excavation work for the construction of buildings, the work of constructing or demolishing buildings and structures, and the guarding of dangerous machinery used in connection therewith, and the owners and contractors for such work shall comply therewith. ’ ’

The jury returned a verdict for plaintiff and the defendant Orlando. The Appellate Division affirmed as to the plaintiff, but reversed as to the defendant Orlando, on the law and the facts, and dismissed the third-party complaint.

On this appeal Orlando seeks to avoid liability to the plaintiff on the grounds that he had completed the job fifteen days before the occurrence of the accident, and that the accident occurred while the third-party defendant was in ownership, management and control of the premises.

Orlando denies that he created a dangerous condition. The circumstance that he was not in possession of the premises is not determinative of his liability. (Haverstick v. Hansen & Sons, 277 N. Y. 158.) He knew that the excavation was to be used for the laying of a foundation for the building of stores. As a contractor he was aware that an embankment over a trench negligently excavated could collapse. The question of his negligence was at best a question of fact for the jury. The jury resolved the question against him. The verdict of the jury has been sustained by the Appellate Division. We cannot say as a matter of law that the finding was incorrect.

We now turn to the question of whether Orlando, having been found negligent, may recover from the third-party defendant on the doctrine of a right to indemnification from the person in possession and control of the premises.

If the work negligently performed by Orlando comes within the purview of section 241 of the Labor Law, no indemnification is permitted. This court has construed the section as rejecting the common-law doctrine of active and passive negligence. (Walters v. Rao Elec. Equip. Co., 289 N. Y. 57; Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N. Y. 412.) In these cases the court had enunciated the rule that the failure to comply with the statute was a breach of a nondelegable duty, which renders the defendant an active wrongdoer.

The record discloses a failure to install shoring as mandated by the rules of the Board of Standards and Appeals promulgated pursuant to the statute.

Orlando attempts to avoid the sanctions imposed by the statute and enforced by the pertinent case law on two theories. His first hypothesis is that he did not violate the statute but rather, if there was any violation at all, it was a violation of the regulations promulgated by the Board of Standards and Appeals. The rules and regulations promulgated pursuant to section 241 of the Labor Law are designed to supplement and effectuate the legislative policy enunciated in that section. Since it has been determined that the Legislature has abolished the distinction between active and passive tort-feasors for the purposes of the statute, it follows that the rules and regulations implement the statute and do not alter the legislative intent.

As we have stated under the rulings in the Walters and Semanchuck cases (supra), the Legislature had made inapplicable, for the purposes of the statute, the common-law rule of indemnity between passive and active tort-feasors. Thus any person violating the statute is per se an active tort-feasor, and hence such a person cannot have a cause of action in negligence against a joint tort-feasor. To hold otherwise would encourage a disregard for the objectives of the statute. The objectives of the statute are not alone to provide remedies for laborers but more particularly to prevent accidents causing the injuries. The sanctions imposed by the statute and the cases are necessary to compel a high standard of care by forbidding any delegation of responsibility and any right of recovery over against even a joint tort-feasor. The exceptions to the rule do not apply here, as this court specifically held in Wischnie v. Dorsch (296 N. Y. 257, 261). We then stated (when referring to Semanchuck v. Fifth Ave. & 37th St. Corp., supra) In that case we concluded that, in construction and demolition projects, the statute imposed a positive ’ duty upon the owner and contractor alike (Labor Law, § 241); that it was an active, primary duty; and that any agreement to provide indemnity for concurrent failure to perform such duty must be unequivocally expressed ’, under the general theory that contracts * will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms ’ (Thompson Starrett Co. v. Otis Elevator Co., 271 N. Y. 36, 41). ”

If, as Orlando contends, it was not his duty to furnish any shoring or bracing, then he would not be liable to the plaintiff and there would be no basis for indemnification. The verdict in favor of the plaintiff necessarily implied a finding that the trench was not reasonably safe for the purpose for which it was to be used, and that Orlando was affirmatively negligent in failing to provide shoring and bracing, thereby creating a dangerous condition at the site of the excavation. In such circumstances there may not be a recovery over as any negligence of North-crest would merely establish both as active joint tort-feasors.

Orlando’s second contention is that he was not a contractor within the meaning of the statute. He seeks to establish the agency or employee relationship by evidence that Northcrest directed his activities; approved and accepted the job as completed; paid compensation at a rate per cubic yard of earth removed, and maintained the premises under its ownership, management and control for two weeks after Orlando completed the job. The only factor which lends support to Orlando’s contention is the testimony showing that Northcrest issued oral instructions instead of supplying plans or specifications. The fact that he received oral instructions as to the manner and extent of excavating the trench and was not supplied plans or specifications, hardly proves that Orlando was an employee or agent. The oral instructions were merely a practical substitute for plans or specifications. Prior to the commencement of the work, Orlando discussed the terms upon which the job was to be accepted with an officer of Northcrest. Orlando was required to supply and did supply the power shovel, the trucks for the removal of the earth and the laborers. The laborers were subject solely to the orders of Orlando. Orlando paid the laborers, as well as all the other incidental expenses of the operation. Giving full credence to Orlando’s testimony, and drawing every favorable inference therefrom, it nevertheless is apparent that Orlando was an independent contractor and not an employee or agent of Northcrest.

There remains for consideration a determination of Special Term made prior to the trial. Special Term held that the third-party complaint' stated a cause of action. The Appellate Division affirmed (282 App. Div. 934). Orlando contends that this ruling is the law of the case. This court is not bound by such determination. In Gracie Square Realty Corp. v. Choice Realty Corp. (305 N. Y. 271), this court said at page 278: The plaintiffs rely largely upon the doctrine of the law of the case by reason of the fact that in 1948 there was a denial at Special Term of a motion under rule 106 to dismiss the complaint for insufficiency, and that no appeal was ever taken therefrom. The denial of that motion merely signified that the court considered that the complaint alleged a valid cause of action against defendants and, in any event, would not justify the invocation of the doctrine of the law of the case in this court ’ ’.

The judgment should be affirmed, with costs.

Conway, Ch. J., Desmond and Fuld, JJ., concur with Burke, J.; Froessel and Van Voorhis, JJ., dissent in part and vote to modify the judgment appealed from by reinstating the judgment rendered by the trial court in favor of the third-party plaintiff, Anthony J. Orlando, against the third-party defendant, North-crest Gardens Corp., for the reasons stated in the dissenting-opinion by Mr. Justice Cohn in the Appellate Division; Dye, J., taking no part.

Judgment affirmed.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Howard Prosser, Appellant.
    Argued October 17, 1955;
    decided December 1, 1955.

      John B. Corcoran for appellant.
    Defendant has been deprived of his fundamental right to a speedy trial. (People ex rel. Battista v. Christian, 249 N. Y. 314; People v. McLaughlin, 291 N. Y. 480; People v. Smith, 2.N. Y. Crim. Rep. 45; People v. Beckwith, 2 N. Y. Crim. Rep. 29; Arrowsmith v. State, 131 Tenn. 480; Thomas v. People, 67 N. Y. 218.)

      Richard N. Donovan, District Attorney, for respondent.
    I. The Oswego County Court properly denied appellant’s motion to dismiss the indictment on the ground that appellant had been denied a speedy trial. (People v. Hall, 51 App. Div. 57; Arrowsmith v. State, 131 Tenn. 480; People v. Beckwith, 2 N. Y. Crim. Rep. 29; People v. Smith, 2 N. Y. Crim. Rep. 45; State v. Arthur, 21 Iowa 322; People v. Perry, 196 Misc. 922; State v. Kopelow, 126 Me. 384; State v. Slorah, 118 Me. 203; Beavers v. Haubert 198 U. S. 77.) II. The lapse of time between the indictment in 1946 and trial in 1955 did not prejudice appellant.
   Fuld, J.

The defendant in this case was brought to trial, and convicted, on an indictment six years after it had been returned by a grand jury. The Appellate Division condemned the delay, but concluded that the conviction should be affirmed. We take a different view. We condemn the delay and hold that it compels reversal of the conviction and dismissal of the indictment.

In January of 1946, the Grand Jury of Oswego County returned five indictments against the defendant and his brother. One of these indictments, No. 6792, charged him, in one count, with burglary and, in the second count, with grand larceny; another, No. 6793, charged him with carrying a loaded revolver concealed upon his person. On January 30, 1946, he was arraigned in Oswego County Court and pleaded not guilty to each of the five indictments. Soon after, however, when brought on for trial, the defendant appeared with assigned counsel and, following an pif-the-record conference at the bench, pleaded guilty to all of indictment No. 6793 and to the larceny count of indictment No. 6792. A week or two later, in February, 1946, he was sentenced, as a fourth felony offender, to imprisonment for an indeterminate term of from fifteen years to life.

The defendant was confined to Attica State Prison, and there he remained until 1952. In March of that year, he instituted a habeas corpus proceeding in the County Court of Wyoming County, claiming that, since one of his previous convictions was for a misdemeanor only, he had been improperly sentenced as a fourth felony offender. The court agreed with his position and, accordingly, on April 10, 1952, issued an order directing that he be returned to the Oswego County Court for resentencing. The Oswego County authorities, apparently doubting the power of the Wyoming County Court to make such an order, refused to recognize or obey it. The defendant then initiated a second habeas corpus proceeding in Wyoming County, which resulted in an order directing that he be released from prison on July 21, 1952, if the first order was not complied with by that date. (People ex rel. Prosser v. Martin, 208 Misc. 875.) This order was affirmed by the Appellate Division (281 App. Div. 1008) and by us (306 N. Y. 710); it was expressly noted that, by this time, the term of imprisonment that might have been lawfully imposed [had] expired” (p. 712).

Confronted with that determination, the district attorney had the defendant returned to the Oswego County Court for rearraignment on one of the three indictments to which six years before he had pleaded not guilty. On that rearraignment, his counsel moved to dismiss the indictment on the ground that the defendant had been deprived of his right to a speedy trial. The county court judge — who in 1946 had sentenced the defendant as a fourth offender and who later had declined to comply with the Wyoming County Court orders directing his resentence — denied the motion. After some further delay, in part attributable to the defendant, the case proceeded to trial; he was convicted, upon two counts, of burglary and grand larceny and sentenced, as a prior felony offender, to imprisonment for consecutive indeterminate terms of from ten to twenty years on one count and of from five to ten years on the other.

As already indicated, the judgment was affirmed on appeal. It was the Appellate Division’s opinion that the defendant had waived his right to a speedy trial by failing to invoke the remedy afforded by section 668 of the Code of Criminal Procedure (285 App. Div. 997).

The guarantee of a speedy trial ■ — ■ embodied in the United States Constitution and in the constitutions of many states — is found in section 8 of the New York Code of Criminal Procedure. In so many words, that section announces that “In a criminal action the defendant is entitled * * * Toa speedy and public trial.” Section 668 of the Code, providing the means by which the defendant may enforce his right, declares: “ If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown.”

The speedy trial guarantee, preventing undue delay between the time of indictment and trial, serves a threefold purpose. It protects the accused, if held in jail to await trial, against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of crime; and, finally, like statutes of limitation, it prevents him from being 1 ‘ exposed to the hazard of a trial, after so great a lapse of time ” that “ the means of proving his innocence may not be within his reach ” — as, for instance, by the loss of witnesses or the dulling of memory. (Report of Commissioners on Practice and Pleading [1849], p. 342, quoted in McKinney’s Cons. Laws of N. Y., Book 66, pt. 2, Code Grim. Pro. [1945 ed.], p. 543; see, also, United States v. Provoo, 17 F. R. D. 183, 198, 203 [U. S. Dist. Ct., D. Md.], affd. 350 U. S. 857.) Its benefits may be claimed, therefore, by any person under indictment, whether he be imprisoned to await trial on the pending charge, whether he be admitted to bail or whether he be a prisoner already serving a sentence in the same jurisdiction for a different crime. (See, e.g., People v. Corrado, 150 Misc. 787, 789-790; Frankel v. Woodrough, 7 F. 2d 796, 798-799; Fulton v. State, 178 Ark. 841, 843-845; Harris v. State, 194 Md. 288, 296; State v. Smith, 10 N. J. 84, 93; Arrowsmith v. State, 131 Tenn. 480; Ex Parte Chalfant, 81 W. Va. 93; State v. Keefe, 17 Wyo. 227, 257-259; see, also, Note, 118 A. L. R. 1037.) While the first two considerations noted above may not loom large in the case of a defendant in prison for another offense, there can be no dispute that it is vital, even for him, that the trial be had while witnesses are available and memories fresh.

It is clear, then, that Prosser was entitled to a speedy trial, and it is equally clear that he did not receive one. Although what amounts to an undue delay is 11 not fixed by the statute in days or months ”, depending as it does “ upon the circumstances of each particular case ” (People v. Hall, 51 App. Div. 57, 62; see Beavers v. Haubert, 198 U. S. 77, 87), it may not seriously be urged that the six-year lag in the present case was consistent with the mandate for a speedy trial.

Section 668 enables the court, if the defendant is not brought to trial at the next term of the court in which the indictment is triable,” to order a dismissal of the indictment, unless the defendant himself procured the postponement of the trial or unless the prosecution shows “ good cause to the contrary ”. The district attorney contends that the defendant waived his right to a speedy trial and may not call upon the provisions of section 668, even though he sought no postponement and even though the prosecution failed to show “ good cause ” for the six-year inaction on its part. Underlying that position are both the premise that it is the accused who has the obligation of securing a speedy trial and the feeling that it would be unfair to permit a defendant to sit back and do nothing until the prosecutor notices the case for trial, and then claim that he should be discharged because of undue delay.

Although a number of jurisdictions have implementing provisions similar to section 668, the results reached by their courts have not been uniform.

In some states, it has been said that, if the defendant does not affirmatively and promptly make known his desire for a speedy trial, he may not be heard to complain. (See, e.g., Pietch v. United States, 110 F. 2d 817, 819; McCandless v. District Court, 245 Iowa 599; State v. McTague, 173 Minn. 153; State ex rel. Davis v. Bayless, 38 Okla. Cr. 129.) As the Minnesota court expressed it, “ the accused must go on record in the attitude of demanding a trial or resisting delay ” or be deemed “ to have waived the privilege.” (State v. McTague, supra, 173 Minn. 153, 154-155.) Under such decisions, the burden of obtaining a prompt trial is on the defendant; the state, having procured an indictment, is not compelled to do anything until the defendant demands a trial, and even then, if the demand is not made promptly, it may claim that he has waived his right to a speedy trial. Years may have elapsed, so that the time between indictment and trial exceeds even that permitted by the applicable statute of limitations between commission of the crime and indictment, and yet, these cases hold, the prosecution remains free to press the charge and proceed to trial.

In other states, the courts have taken a different view; the burden of proceeding promptly is on the state, not on the defendant. (See, e.g., State v. Carrillo, 41 Ariz. 170, 172; State v. Chadwick, 150 Ore. 645, 650; Flanary v. Commonwealth, 184 Va. 204; Ex Parte Chalfant, supra, 81 W. Va. 93.) In the words of the Oregon Supreme Court, “ When the state sees fit to charge a defendant by indictment with the commission of a crime, it is equally the duty of the prosecutor to see that defendant is arraigned and enters a plea and speedily brought to trial, as it is to charge him with the offense in the first place ’ ’. (State v. Chadwick, supra, 150 Ore. 645, 650.)

The second view is the one that we find sounder and more persuasive. It is the state which initiates the action and it is the state which must see that the defendant is arraigned. It is likewise the state which has the duty of seeing that the defendant is speedily brought to trial. And from this it follows that the mere failure of the defendant to take affirmative action to prevent delay may not, without more, be construed or treated as a waiver. The plain language of section 668 unerringly points that conclusion. In effect, it calls for dismissal of an indictment, if its trial is unduly put off, unless good cause to the contrary be shown.” As we read the statute, it is incumbent upon the prosecution to establish “ good cause ” for its own delay, and not simply the fact that the defendant has failed to demand a trial. When the legislature expressly excepted from section 668 a defendant whose trial has * * * been postponed upon Ms applicationit disclosed a design not to except a defendant who has neither applied for nor agreed to a postponement. In Flanary v. Commonwealth (supra, 184 Va. 204), dealing with a statute similar to ours, the court said, in terms here most apt (p. 211):

“ If the legislature had intended the silence of the accused * * * to be a waiver of his right, it could, and doubtless would, have used appropriate language to convey that intention. If the language used is to be given its usual and ordinary construction, it is impossible to hold that the words, continuance granted on the motion of the accused, ’ convey the same meaning as ‘ silence,’ or ‘ the accused must demand a trial ’

The Report of the Commissioners on Practice and Pleading, who drafted section 668, further demonstrates that it was not designed to shift the responsibility for a prompt trial to the defendant, or to prevent him from taking advantage of slow moving or dilatory prosecutors. The fact is that some such remedy as a motion to dismiss was regarded as necessary because, under the then ‘1 existing practice, ’ ’ it all too frequently happened that an indictment was kept forever suspended over the head of the defendant.” (Report of the Commissioners on Practice and Pleading, op. cit., p. 341.) As the Commissioners pointed out, although the statute of limitations protects defendants from indictments returned too long after the commission of the crime, “ yet, when an indictment is once found, there is no limitation of time, within which it must be brought to trial.” (Ibid, p. 342.)

The sole purpose of section 668 when enacted, therefore, was to provide relief for persons denied a speedy trial (see People v. Beckwith, 2 N. Y. Crim. Rep. 29), and it imposed no obligation on the defendant affirmatively to seek such a trial or be deemed to have waived it.

This is not to say that a defendant may not consent to delay in bringing the indictment to trial and thereby waive his right. (See, e.g., People v. Perry, 196 Misc. 922; Pietch v. United States, supra, 110 F. 2d 817, 819; State v. McTague, supra, 173 Minn. 153, 154-155; see, also, Notes, 129 A. L. R. 572; 44 L. R. A. [N. S.] 871.) Not only is such a waiver spelled out where both prosecution and defense agree upon or stipulate for a postponement, but it may be implied, for example, from the fact that the defendant, although present in court, interposes no objection to a postponement sought by the district attorney. In that situation, the defendant’s silence and failure to assert his right to an immediate trial would be relevant. The inquiry in each case is factual and, like the question whether there has been undue delay, depends “ upon the circumstances of each particular case. ” (People v. Hall, supra, 51 App. Div. 57, 62.) In this case, not only was there never an application for a postponement in court or upon notice to the defendant, but there was absent even an awareness that the prosecution was being kept alive or that a trial would eventually be had (cf. People v. Perry, supra, 196 Misc. 922), without which there could be no factual basis for inferring consent or waiver.

In the light of what occurred in 1946, the defendant had no reason to believe that the remaining indictments would ever be tried. At the time he pleaded guilty, there appears to have been some sort of compromise ” whereby, in return for such a plea, the remaining charges were not to be pressed. (Cf. People v. Beckwith, supra, 2 N. Y. Crim. Rep. 29; People v. Smith, 2 N. Y. Crim. Rep. 45.) While at first he pleaded not guilty to all five indictments, he later changed his plea as to one indictment (No. 6793) and as to a count of another (No. 6792), after an off-the-record conference, sug-gested by the court, between defendant’s assigned counsel, the district attorney and the presiding judge. The fact that defendant went to jail upon those indictments, did not prevent the prosecution from proceeding with the others (see Thomas v. People, 67 N. Y. 218), but the sentence of imprisonment for the very long term of from fifteen years to life seemingly sufficed as punishment for all the crimes charged. And, in explaining the reason for the six-year delay, the district attorney acknowledges that his predecessor in office thought there was nothing to be gained by further prosecution ’ ’. Certainly, if the district attorney did not plan any further action, the defendant could hardly have believed or expected that he would be brought to trial on the remaining indictments. The prosecutor did, it is true, change his mind in 1952, but it is quite evident that he did so only because the defendant’s 1946 sentence had been cut short by the court’s determination that it was in excess of law. (See People ex rel. Prosser v. Martin, supra, 306 N. Y. 710.)

In short, then, since there was an untoward delay of six years, without a waiver by defendant of his section 8 right to a speedy trial, and since the prosecution failed to show the slightest “ good cause ” for that delay, the trial judge should have granted defendant’s motion and dismissed the indictment.

As for the asserted danger that a defendant may sit back and, if the prosecution fails for one reason or another to move the indictment for trial expeditiously, claim his right to a speedy trial and go free, it is somewhat less than real. Overlooked is the fact that the district attorney may at any time have the case placed on the calendar for a particular day. The defendant and his counsel will be in court and, if at that time the People seek a postponement and the defense fails to oppose or object, its failure will probably import consent to the ensuing delay and bar any later claim that defendant’s right to a speedy trial had thereby been denied. The actual result of the present decision, therefore, is merely to impose upon the officers, charged with enforcing the law and who secured the indictment, the quite reasonable, far from burdensome, duty of noticing it for trial.

It may well be that adherence to the rule here announced will on occasion result in the discharge of one guilty of crime, but, as to that, we need but say, as we did in People v. Jelke (308 N. Y. 56, 68), that our decision “ transcends the issue of * * * [a particular defendant’s] guilt or the disposition of [a] particular case.”

The judgments should be reversed and the indictment dismissed.

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

Judgments reversed, etc.

      . In this connection, it is of more than passing significance that, although section 668 of the Code permits the defendant to move to dismiss the indictment, the legislature neither by that statute nor by any other provision empowers him to bring the indictment on for trial. (Cf. Civ. Prac. Act, §§ 181, 433.)


author: Van Voorhis, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Edward A. Boehm and Fritz Boehm, Appellants.
    Argued October 3, 1955;
    decided December 1, 1955.

      William H. McKeon for appellants.
    The court helow erred in saying that defendants failed to produce substantial and credible evidence sufficient to overcome the presumption of regularity. (Matter of Bojinoff v. People, 299 N. Y. 145; Johnson v. Zerbst, 304 U. S. 458; People v. Richetti, 302 N. Y. 290; Rice v. Olson, 324 U. S. 786; Von Moltke v. Gillies, 332 U. S. 708.)

      John F. Dwyer, District Attorney (Robert A. Burrell of counsel), for respondent. I.
    The People concede that there is nothing in the records of the trial court to indicate whether or not defendants were advised of their right to counsel. (People v. Lake, 190 Misc. 794.) II. The presumption of regularity which attends a court of record placed upon defendants upon the hearing the burden of overcoming that presumption by a preponderance of the credible evidence. (Hawk v. Olson, 326 U. S. 271; Walker v. Johnston, 312 U. S. 275; Johnson v. Zerbst, 304 U. S. 458; People v. Varelli, 277 App. Div. 887, 302 N. Y. 641; People v. Barber, 276 App. Div. 1040; People ex rel. Asaro v. Morhous, 268 App. Div. 1016.) III. Upon the hearing, defendants failed completely to sustain the truth of the allegations in their petition by a preponderance of the credible proof.
   Van Voorhis, J.

The appellants, Edward A. Boehm and Fritz Boehm, were jointly indicted on the 18th day of September, 1931. The indictment charged attempted robbery in the first degree in three counts. Upon this indictment, Fritz Boehm was arraigned on September 21, 1931, in the Supreme Court, Erie County, and entered a plea of guilty to the indictment. On October 2, 1931, he was sentenced to Auburn State Prison for from twelve and one-half to twenty-five years, plus five years for having a revolver in his possession. Edward A. Boehm was arraigned in the same court on November 10, 1931, pleaded guilty and was sentenced to Auburn State Prison for from twelve and one-half to twenty-five years, plus five years for having a revolver in his possession.

In the moving papers jointly verified by appellants on January 12, 1954, they applied for a writ of error coram nobis, seeking to vacate these convictions and sentences.' They alleged in their petition that at the times of their arraignments they were not advised of their right to counsel, that they were not in fact represented by counsel, and, further, that they did not then read, write, or comprehend English. The writ was returnable on January 25, 1954, and the proceeding was adjourned until January 28, 1954, on which date a hearing was had before Justice Fisher, the appellants being present in person and represented by Edward K. 0 ’Shea, Esq., their assigned counsel.

Upon the hearing, both appellants testified as witnesses in their own behalfs. On the 18th day of March, 1954, Justice Fisher issued a memorandum decision, holding that the defendants’ motion to have their convictions and sentences set aside should be granted, and that they should be rearraigned on the original indictment. An order was entered upon this decision, from which the People appealed to the Appellate Division, Fourth Department.

Pending that appeal and on April 30, 1954, the defendants were brought before Justice Munson of the Supreme Court,. to be rearraigned upon the indictment, in compliance with Justice Fisher’s order of April 26, 1954. Both defendants were present in person and with their counsel, Edward K. O’Shea, who waived the reading of the indictment, whereupon Justice Munson advised the defendants of their right to counsel, inquired of defendants if they understood the English language, to which they both replied, Yes ”. Whereupon both defendants pleaded not guilty and were ordered by Justice Munson to be returned to Auburn State Prison, pending the decision of the Appellate Division, Fourth Department, on the People’s appeal herein.

Thereafter, and on November 9, 1954, the said appeal was argued before the Supreme Court, Appellate Division, Fourth Department, defendants-appellants being represented by their assigned counsel. The Appellate Division unanimously reversed the order appealed from on the law and the facts and dismissed defendants’ writ of error cor am nobis.

The defendants, upon application, were granted leave to appeal to the Court of Appeals, and were subsequently granted leave to have their appeal heard upon the original record and typewritten briefs, and other counsel assigned. This appeal is now before us.

The gist of the testimony by these brothers is that they were born in Rosenberg, Germany, in 1905 and 1907; that they came to the United States in 1922; that on September 21, 1931, and on November 10, 1931, when Fritz and Edward Boehm respectively pleaded guilty in Brie County, they understood English imperfectly. Fritz Boehm testified that no attorney represented him when he was arraigned; that he did not understand what was going on; that no interpreter was present in the court room; that he did not understand what the Judge said to him; that the indictment was not read to him, and that he did not know for what purpose he was in court and does not recall how he pleaded to the indictment. He testified that he did not recall being advised of his right to counsel or any of the proceedings that occurred that day. Edward Boehm testified that he had copies of the original arraignment and the original minutes sent to him, but never was in the courtroom; that the Sheriff brought him to the door and told him to wait there and then asked if he wanted to go with his brother, which he said that he did; that nobody read any indictment to him and, to the best of his recollection, that he never went before the Justice, following which he testified that no one acted as interpreter, and that he spoke about as much English as his brother. He testified in answer to questioning by the court in the cor am nobis proceeding.

‘ ‘ By the Court: Q. How about English could you understand at that time ? A. About the same as my brother; a few words, just local words, every-day, just around. By Mr. O’Shea: Q. Just words that would give you the necessities of life and get you by; is that right? A. Yes.”

In an affidavit, Edward Boehm said that he was brought into the courtroom, arraigned and pleaded guilty.

The People called the deputy clerk, Erie County, who had been assigned to the criminal part of the Supreme Court with the late Justice Norton and Justice Lytle, before whom these men had been arraigned and by whom they were sentenced. He testified that he was well acquainted with both of these Justices, that they both consistently advised defendants who appeared before them that they had a right to counsel at all stages of the proceedings in court, that it was the invariable custom in holding court, whenever a person appeared who could not speak or understand English, to produce an interpreter in the language which the defendant spoke, and that this never failed to occur in his recollection. Justice Norton is deceased and Justice Lytle was unavailable, having retired and being in North Carolina.

Justice Fishes,, in his memorandum of decision, noted the lack of schooling and intelligence of these men, and commented that from the time of their arrival in the country in 1922 until September, 1931, they worked as hired hands at different ranches in the west and southwest, tending sheep and cattle and doing farm chores; that they acquired little knowledge of the English language; that their mental ages were low; that they were serving long sentences with maximum expiration dates in 1968, and Justice Fishes concluded: “It is inconceivable that with that background and without counsel they had sufficient comprehension of the situation to enable them, for instance, to waive the statutory period before sentencing, to say nothing about being able to comprehend the seriousness of a charge they were pleading to or an understanding of their rights to be represented by an attorney. ’ ’

The Appellate Division, Fourth Department, dismissed the writ with these comments: “We are unable to agree with the Special Term that these defendants at the time of their conviction did not comprehend what they were charged with and did not understand their right to counsel. They had been in this country for nine years. In 1931, Fritz Boehm was twenty-four years old and his brother, Edward twenty-six. They had worked in various parts of the country. It is beyond belief that they did not understand what was said to them. It is significant that no interpreter was employed by the court. The Special Term made use of certain probation reports which were not received in evidence. Such reports were somewhat irrelevant to the issue. One of the reports was delivered to us and we have felt justified in examining it, since it was considered by the Special Term. It indicates that the attempted holdup by these two men was by use of a stolen automobile and that they used their guns. One victim was shot four times. The other was more fortunate, as the bullet passed through his hat. It can hardly be said that they did not know what they were in court for or that they did not comprehend the seriousness of the charges against them.”

Although the records of 1931 do not show that these men were informed of their right to counsel at each and every stage of the proceedings, that was twenty-four years ago, at a time when it-was apparently not customary to enter such recitals in the Clerk’s records of the Supreme Court, Erie County, and the Appellate Division has held, in effect, that their testimony lacks credibility to overcome the presumption of regularity.

We are not prepared to say that this conclusion is wrong. The mental ages of these men were not shown to be such as to preclude their understanding that they were being charged with robbery, first degree, and that they were entitled to counsel if they so desired. The question treated in the dissenting opinion is not presented by the record as we read it. A 1931 probation report, found in the files, recites that a psychiatrist’s examination of Fritz Boehm indicated that he was a moron with the mentality of a five-year-old child; the report contains no evaluation of Edward Boehm’s mentality. A report of the Department of Correction states that on October 22, 1953, when these men were transferred from Napanoch to Auburn Prison, both were rated as ‘1 too high grade for mental defective institution ’ ’; that Fritz Boehm had a mental age of ten years and eight months, and Edward of eleven years, one month. The average adult is supposed to have a mental age of about fourteen years. It is common knowledge that these ratings, if correctly taken, would vary slightly if at all, after persons reach the age which these men had attained when they were sentenced in 1931. If the records of the Department of Correction are correct for 1953, the measurement of Fritz Boehm’s intelligence appearing in the probation report in 1931, would seem to have been wrong. In any event, their sentences should not be vacated now upon an ex parte statement reported to have been made by a psychiatrist in the probation report of 1931. There is nothing to show that .the mental condition of these men, whatever it was, was not before the court when they were arraigned and sentenced, and the presumption of regularity which pertains to the record imports that they were found by the Justices who accepted their pleas and sentenced them to have been of sufficient mental capacity to understand the proceedings and intelligently to waive their right to counsel.

If either of the defendants was a moron with a mental age so low as to render him incapable of understanding the arraignment proceedings or of intelligently waiving his right to counsel or of representing himself adequately, he would be entitled to a writ of error coram nobis vacating his 1931 judgment of conviction. Neither defendant sought a vacatur of his conviction because of any alleged mental incapacity, however, and the court, in granting the coram nobis application, did not rely upon any such weakness of intellect but upon other facts, such as the defendants’ lack of schooling and their unfamiliarity with the English language.

Our present disposition does not foreclose the making of another coram nobis application. (See, e.g., Matter of Bojinoff v. People, 299 N. Y. 145, 151; People v. Martine, 303 N. Y. 789). If either defendant actually does claim that in 1931 he lacked sufficient intelligence or mental capacity to understand the trial court’s monition that he was entitled to an attorney, he is free to file a further petition based upon such a claim. However, as already indicated, on the present record, the Appellate Division was fully warranted in reaching the conclusion it did and in dismissing the petition of each defendant.

The order of the Appellate Division is affirmed.

Desmond, J.

(dissenting). Official documents, the accuracy of which is not contested, show conclusively that in 1931 when each of these brothers pleaded guilty without counsel and each received a sentence of seventeen and a half to thirty years, neither defendant was mentally capable of understanding legal procedures or phraseology. As to Fritz Boehm, the probation report which must have been in the hands of the sentencing Judge at sentence time (see Code Crim. Pro., § 482) shows that he was a moron with the mentality of a five-year-old child. Many years later, when he was transferred to a prison from the State institution for “ mental defective ” delinquents at Napanoch (Correction Law, § 438) Fritz Boehm, who had meanwhile gone to school at the latter institution, had reached a mental age of ten years and eight months and had an I.Q. of 71. Edward Boehm, without the aid or advice of a lawyer, pleaded guilty in 1931 on the very day on which he was arraigned. When he left Napanoch twenty-two years later his mental age was eleven years and one month and his I.Q. was 74. Napanoch records show that neither brother could read or write when they came there in 1932. although each was over twenty years old. ‘ ‘ There are some individuals who, by reason of age, ignorance or mental incapacity, are incapable of representing themselves adequately in a prosecution of a relatively simple nature. This incapacity is purely personal and can be determined only by an examination and observation of the individual ” (Wade v. Mayo, 334 U. S. 672, 684; see Palmer v. Ashe, 342 U. S. 134, 136, 137; Massey v. Moore, 348 U. S. 105, 108, 109). Since such incapacity appears of record without dispute, the 1931 judgment of conviction as to each defendant was as matter of law totally void (see People v. Lewis, 413 Ill. 116, 122; Allen v. Commonwealth, 324 Mass. 558, 562; The Right to Counsel, Wis. L. Rev., March, 1955, pp. 301-303). When there appears so total a deprivation of the most fundamental of rights, no court has -a choice as to whether or not to annul the conviction, and indications of probable guilt have no bearing on the issue of whether their constitutional rights were violated.

This is not the usual coram nobis proceeding where there is presented a question of fact as to whether a defendant was told of his right to have legal counsel and, if so, whether he consciously and knowingly waived that right. There is testimony here that each of the sentencing* Justices was accustomed in 1931 to inform defendants, on arraignment, of their right to counsel. But whether or not the Boehm brothers or either of them was so notified is beside the point on this record. A five-year-old child (or a ten-year-old child) in court without a lawyer simply would not know what was going on. To tell him in the formal language of sections 188 and 308 of the Code of Criminal Procedure that he was entitled to be represented by counsel at every stage of proceedings, would be a simple waste of words. Each of the several concepts involved in that verbal formula would be to him, in the absence of a most detailed and careful explanation appropriate to his years, outside of and beyond his understanding. And it can make no difference whether the Judge did or did not realize the mental immaturity of the defendant (although in the case of Fritz Boehm he was put on notice by the probation report).

The order of the Appellate Division should be reversed and the order of Special Term reinstated.

Conway, Ch. J., Fuld and Burke, JJ., concur with Van Voorhis, J. • Desmond, J., dissents in an opinion in which Froessel, J., concurs; Dye, J., taking no part.

Order affirmed.


author: Froessel, J. Conway, Ch. J.

text:
    Selma Rosenbaum, Respondent, v. Salo Rosenbaum, Appellant.
    Argued June 8, 1955;
    decided December 1, 1955.

      Benjamin Shedler and Bernard B. Rubin for appellant.
    I. A decree issued by a Mexican court which purports to grant the husband a divorce from his nonappearing spouse who was served in the foreign action in New York, the domicile of both parties, is invalid and does not warrant the intercession of a court of equity to prevent the husband from obtaining such a decree. (Goldstein v. Goldstein, 283 N. Y. 146; Baumann v. Baumann, 250 N. Y. 382; Garvin v. Garvin, 302 N. Y. 96; Williams v. North Carolina, 317 U. S. 287, 325 U. S. 226; Martens v. Martens, 284 N. Y. 363; Gaskell v. Gaskell, 189 Misc. 504; Pereira v. Pereira, 272 App. Div. 281; Greenberg v. Greenberg, 218 App. Div. 104.) II. The facts in the instant case do not warrant a change in the established law. (Goldstein v. Goldstein, 283 N. Y. 146; Witkowski v. Witkowski, 271 App. Div. 901, 297 N. Y. 626; Raynor v. Raynor, 279 App. Div. 670; Goldberg v. Goldberg, 265 App. Div. 946; Levy v. Levy, 149 App. Div. 561; Imbrioscia v. Quayle, 278 App. Div. 144, 303 N. Y. 841.)

      Marvin George Florman for respondent.
    I. A court of equity has the power to restrain defendant from prosecuting an action in a foreign country where it was fraudulently instituted, or where its purpose is to evade the laws of this State or a decree of our courts. (Greenberg v. Greenberg, 218 App. Div. 104; Garvin v. Garvin, 302 N. Y. 96; Williams v. North Carolina, 317 U. S. 287, 325 U. S. 226; Hammer v. Hammer, 278 App. Div. 396, 303 N. Y. 481; Thompson v. Samson United Corp., 203 Misc. 48; Richman v. Richman, 148 Misc. 387; Jeffe v. Jeffe, 168 Misc. 123; Dublin v. Dublin, 150 Misc. 694; Johnson v. Johnson, 146 Misc. 93; Forrest v. Forrest, 2 Edm. Sel. Cas. 180; Sullivan v. Sullivan, 271 App. Div. 1016; Pereira v. Pereira, 272 App. Div. 281.) II. Defendant’s divorce and subsequent remarriage could prejudice and impair plaintiff’s present rights, and will place upon her a burden of proof in future litigation. There is a presumption of validity of a second marriage, which will conflict with plaintiff’s status as defendant’s wife, and impose upon her the burden of proving the invalidity of the second marriage. (Matter of Dugro, 261 App. Div. 236, 287 N. Y. 595; Earle v. Earle, 141 App. Div. 611; Garvin v. Garvin, 302 N. Y. 96; Imbrioscia v. Quayle, 278 App. Div. 144, 303 N. Y. 841; Pereira v. Pereira, 272 App. Div. 281; Hammer v. Hammer, 278 App. Div. 396, 303 N. Y. 481.) III. Defendant’s remarriage would create certain rights in the second 1 ‘ wife ” to plaintiff’s damage. (Krause v. Krause, 282 N. Y. 355; Williams v. North Carolina, 325 U. S. 226; Richman v. Richman, 148 Misc. 387; B. Gertz, Inc., v. Beyer, 206 Misc. 657.) IV. The majority opinion below is in complete harmony with the public policy of this State. (Garvin v. Garvin, 302 N. Y. 96; Hammer v. Hammer, 303 N. Y. 481; Pereira v. Pereira, 272 App. Div. 281.) V. Injunctions are granted where the foreign suit evades the law of the local State or where equity and good conscience require it. (Cole v. Cunningham, 133 U. S. 107; Pitcairn v. Drummond, 216 Ind. 54; Knapp v. Knapp, 12 N. J. Mis. Rep. 599; Wells v. Wells, 230 Ala. 430; Ballard v. Ballard, 199 Miss. 316; Hartford Acc. & Ind. Co. v. Bernblum, 112 Conn. 583; Kahn v. Kahn, 325 Ill. App. 137; Stultz v. Stultz, 24 N. J. Super. 354; Usen v. Usen, 136 Me. 48; Borda v. Borda, 44 R. I. 337.) VI. The doctrine of comity in New York does not deny recognition of Mexican divorce decrees, other than mail order, where on the face thereof it appears jurisdiction was acquired by the Mexican court. (Caldwell v. Caldwell, 298 N. Y. 146; Martens v. Martens, 284 N. Y. 363; Matter of Fleischer, 192 Misc. 777.)
   Froessel, J.

This is an action solely for an injunction. It was brought by plaintiff to enjoin defendant, and all others acting on his behalf, from proceeding with the prosecution of an action for divorce commenced by him against plaintiff herein in the First Civil Court, Juarez, Mexico. The Supreme Court at Special Term denied plaintiff’s motion for a temporary injunction and, upon defendant’s motion under rule 106 of the Rules of Civil Practice, dismissed the complaint. The Appellate Division has reversed the orders of Special Term, and in granting leave to appeal has certified the following question: “ Does the complaint herein state facts sufficient to constitute a cause of action for injunctive relief? ”

From the allegations of the complaint herein, which we must assume are true, the parties are husband and wife, they have resided continuously in New York, and were separated by a decree of the Supreme Court, New York County, which awarded plaintiff $9,000 a year for her support as well as for the support of the two infant children of the marriage. We must further treat as fact that defendant appeared in Mexico on November 5, 1954, solely for the purpose of signing divorce papers and not for the purpose of residing there, remaining at all times a resident and domiciliary of New York State, wherein he continues to reside and practice his profession, and that he has been physically present here since November 7, 1954. In the concluding paragraph plaintiff alleges that she “has no adequate remedy at law ’ ’.

The issue thus raised is, simply, whether the drastic remedy of injunction may be employed to restrain the prosecution of a concededly invalid divorce action in a foreign country, namely, Mexico. Insofar as sister State divorces are concerned, we have held in Hammer v. Hammer (303 N. Y. 481 [Florida divorce]) and in Garvin v. Garvin (302 N. Y. 96 [Virgin Islands divorce]) that upon the facts there presented an injunction may issue.

The rationale upon which such injunctions have been allowed is as follows: Since the Supreme Court of the United States, in 1942, decided Williams v. North Carolina (317 U. S. 287; see, also, 325 U. S. 226), and there overruled Haddock v. Haddock (76 App. Div. 620, affd. 178 N. Y. 557, affd. 201 U. S. 562), such sister State divorces granted to plaintiffs domiciled in such States — provided “ the requirements of procedural due process ” are met (317 U. S. 303) —are entitled to a presumption of validity under the “ full faith and credit ” provision of the Federal Constitution (art. IV, § 1). Moreover, in the Hammer case (supra), the husband submitted numerous facts tending to show that he has transferred his domicile to that [sister] State ” (278 App. Div. 399), and in the Garvin case (supra), which was an action for separation, there was an opposing affidavit by the husband’s attorney attempting to show that the Virgin Islands residence was not sham — factors lending added strength to the presumption of validity under the “ full faith and credit ” doctrine which would attach to resulting decrees. Each such divorce, therefore, has the semblance of being something other than a complete nullity, such as we have here, where defendant does not even deny plaintiff’s clear allegations. Hence in the Garvin case we held that an injunction may issue to save the rights of the nonappearing spouse and guard her against “ the heavy burden of striking down the prima facie effect of the foreign [sister State’s] court’s finding of residence ” (302 N. Y. 102).

However, we have never held that any such presumptive legality and validity must be accorded Mexican divorces — which are, of course, beyond the scope of ‘ ‘ full faith and credit ’ ’ (see Caldwell v. Caldwell, 298 N. Y. 146, 149; Gaskell v. Gaskell, 189 Misc. 504). Judgments of courts of foreign countries, we said in Martens v. Martens (284 N. Y. 363, 365), “ differ from judgments of courts of our sister States to which, by constitutional mandate, full faith and credit must be given. They must not contravene our public policy ”. Thus, under comity — as contrasted with full faith and credit — our courts have power to deny even prima facie validity to the judgments of foreign countries for policy reasons, despite whatever allegations of jurisdiction may appear on the face of such foreign judgments.

Our Legislature has expressly declined, in section 397 of the Civil Practice Act, to declare the “ effect ” of a judgment of a foreign country beyond authorizing our courts to receive such judgment as ‘1 evidence ’ ’ under section 395 of the Civil Practice Act — obviously because it recognized that the full faith and credit clause of our Federal Constitution was inapplicable to such judgments. It is therefore clear that the recognition of a foreign country judgment is far less certain, the judgment itself is far more assailable and vulnerable, than sister State judgments, and is subject to a test of policy. There is thus no significant basis for treating sister State and foreign country divorce judgments as identical in legal effect within this State.

In our opinion, the question as to whether an injunction may issue to restrain defendant from prosecuting this Mexican divorce action — a clear legal nullity under the allegations of plaintiff’s complaint, and of no more validity than a so-called mail-order divorce, from which we said ‘ ‘ no rights of any kind ' may spring” (Caldwell v. Caldwell, supra, p. 151) — is controlled by valid precedent in our court. Prior to the first Williams case (supra) (1942), when Haddock v. Haddock (supra) was still good law with respect to foreign decrees in general, a Florida divorce suffered virtually the same fate in New York State as does a Mexican decree of the type sought by defendant here. In 1940, we denied an injunction to a wife who sought to restrain her husband from proceeding with such a Florida divorce and whose allegations of nonresidence, as here, were not denied by the husband (Goldstein v. Goldstein, 283 N. Y. 146).

Virtually the same arguments which are presently raised by plaintiff concerning the alleged practical effects or annoyance which would be caused her by a legally invalid Mexican decree had theretofore been argued successfully before the Appellate Division, First Department, in Greenberg v. Greenberg (218 App. Div. 104 [1926]) and were submitted to this court by the plaintiff in the Goldstein case (supra) fourteen years later (see 283 N. Y. 147). However, we there rejected the reasoning of the Greenberg case (supra) and denied the injunction (283 N. Y. 148).

On the facts pleaded here, defendant is attempting to prosecute a divorcé in a foreign country which would not be entitled to “ full faith and credit ” in this State — precisely the sitúatian we faced with respect to sister State divorces as they were regarded prior to the Williams case (supra). What we decided under those circumstances is controlling here.

Plaintiff need not go to any foreign jurisdiction. If, in fact, defendant obtains a Mexican divorce and thereupon enters into a subsequent marriage, plaintiff need have no fear for her property rights and marital status under New York law (Imbrioscia v. Quayle, 278 App. Div. 144, affd. 303 N. Y. 841; Goldstein v. Goldstein, supra). A simple action for declaratory judgment, when all the facts may be fully developed, is at all times available to her (see Baumann v. Baumann, 250 N. Y. 382; Lowe v. Lowe, 265 N. Y. 197), the expenses of which may be assessed against defendant (Civ. Prac. Act, § 1169-a). As we said in the Baumann case (supra, p. 389), “ Under such circumstances the acts enjoined do not constitute legal wrongs, which invade substantial legal rights of the plaintiff that can be recognized in law and protected by injunction.” Since plaintiff thus has an adequate remedy under section 473 of the Civil Practice Act, equity should refrain from granting the drastic relief of injunction.

The orders of the Appellate Division should be reversed and those of Special Term reinstated, without costs. The question certified should be answered in the negative.

Conway, Ch. J.

(dissenting). The question here presented is Avhether the complaint states a cause of action for injunctive relief.

The allegations of the complaint, pertinent to the issue, are set forth in Judge Feoessel’s opinion and need not be repeated here.

The relief prayed for is that defendant and his agents and attorneys be permanently and perpetually enjoined from prosecuting the Mexican action for divorce and that he be similarly enjoined pendente lite.

It is said that no injunction may issue, that plaintiff need have no fear for her property rights and marital status under Nbaa7 York law, that a simple action for declaratory judgment is at all times available to her and that, under the circumstances, it is an adequate remedy. While we agree that plaintiff may institute a suit for a declaratory judgment should defendant obtain a Mexican divorce, Ave disagree Avith the conclusion that it is an adequate remedy or one which excludes the necessity for injunctive relief.

In Garvin v. Garvin (302 N. Y. 96), this court held that an injunction may be obtained in this State to restrain the prosecution of a divorce action in a sister State, or in a United States possession or territory. The theory of the case is that the spouse who remains in New York should not be required to wait until the foreign court has rendered a decree of divorce and then have to bear the burden of overcoming, in a subsequent declaratory judgment action, the prima facie effect of the foreign court’s finding of residence by the spouse who appeared in such jurisdiction. The plaintiff there claimed that her husband had left for the Virgin Islands; that his stay in the Islands was intended to be temporary only, for divorce purposes, and that any alleged residence there was a sham. It is clear that if plaintiff were correct in those assertions any divorce decree which the husband might have obtained in the Virgin Islands would have been void under the second case of Williams v. North Carolina (325 U. S. 226). That is, assuming those allegations as true, under the second Williams case (supra) the Virgin Islands . decree would have been a legal nullity from which no rights of any kind could spring. Nevertheless, we authorized the issuance of an injunction in such a case. It cannot be said that in so doing we were motivated by differences in the burden .of proof required in a declaratory judgment action for, in reality, none exists. In an action for an injunction the nonappearing spouse must prove that the other spouse is not a bona fide domiciliary of the sister State where the action for the divorce is being prosecuted. In an action for a declaratory judgment such spouse must prove that the other spouse was not a bona fide domiciliary of the sister State. In both actions the burden of proof rests upon the plaintiff. In both actions plaintiff must prove her case by a fair preponderance of the evidence. ■ Insofar as the burden of proof in the two kinds of action is concerned the so-called prima facie effect of the sister State decree might well be said to be of no moment for, in order to obtain relief in the injunction action the plaintiff must prove, by a fair preponderance of the evidence, that defendant is not a bona fide domiciliary of the sister State and in the declaratory judgment action the plaintiff must prove, by a fair preponderance of the evidence, that defendant was not a bona fide domiciliary of the sister State. The lack of bona fide domicil must be established in each case since the United States Supreme Court has said that the power to grant a valid divorce rests upon domicil (Williams v. North Carolina, supra, pp. 227, 229).

What we intended to point out in the Garvin case (supra), when we spoke of the prima facie validity of the sister State decree, was the fact that a sister State divorce decree is entitled to a presumption of validity and, once it is procured, the wife ‘ ‘ to save her rights as wife, will have to bring a new suit to set aside the foreign decree ”. (Garvin v. Garvin, supra, p. 102.) Until such time as the wife successfully maintains a collateral attack on the sister State decree by way of a declaratory judgment action, such decree is, for all practical intents and purposes, valid and the procuring spouse may use it to jeopardize the rights of the other spouse.

By permitting the aggrieved spouse to apply for injunctive relief in this State, we also spare her the physical and financial hardship of making a journey to a foreign jurisdiction to present her defense.

We fail to perceive why we should not with more justification afford the same relief to a spouse who is aggrieved as a result of her spouse’s going into a foreign country to seek a decree of divorce in such country. That will affect her in a greater degree both physically and financially. —

In the present action, defendant’s Mexican petitionalleges that he is a resident of Mexico “ and in that virtue you are thereby competent to hear and try my case ”. The Mexican decree, therefore, will undoubtedly carry the recital of Mexican residence. While it may be possible for plaintiff to have such decree declared invalid in a declaratory judgment action brought by her, the invalidity of the decree will not be plainly apparent on its face. In Williams v. North Carolina (325 U. S. 226, 229-230, supra) the United States Supreme Court declared: ‘1 Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicil. * * * Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted.” We cannot say, therefore, that a Mexican decree of divorce founded upon the domicil of one of the spouses is invalid for lack of jurisdiction. Until a sister State divorce decree is proved to have been rendered by a court lacking jurisdiction it can have an injurious effect on the rights of the nonappearing spouse. It is a voidable decree, i.e., one which is valid until declared invalid. The same must be said of a Mexican decree which recites residence (cf. Caldwell v. Caldwell, 298 N. Y. 146, 148, where there was no claim of residence).

It is true that our Federal Constitution does not require our courts to accord presumptive legality and validity to Mexican judgments or decrees. Nevertheless, as early as 1862 this court, announcing the decisional law of this State, declared in Lazier v. Westcott (26 N. Y. 146) that a judgment obtained in a foreign country is conclusive, so far as to preclude a retrial upon the merits and that the defendant can impeach it only by proof that the court had not jurisdiction of the subject matter or of his person, or that the judgment was fraudulently obtained. And, in Gould v. Gould (235 N. Y. 14, 27) which concerned itself with a foreign divorce decree, we quoted favorably from Hilton v. Guyot (159 U. S. 113, 167-168) as follows: “ A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law. Cottington’s Case, 2 Swanston, 326; Roach v. Garvan, 1 Ves. Sen. 157; Harvey v. Farnie, L. R. 8 App. Cas. 43; Cheely v. Clayton, 110 U. S. 701. It was of a foreign sentence of divorce, that Lord Chancellor Nottingham, in the House of Lords, in 1688, in Cottington’s Case, above cited, said: It is against the law of nations not to give credit to the judgments and sentences of foreign countries, till they be reversed by the law, and according to the form, of those countries wherein they were given. For what right hath one kingdom to reverse the judgment of another? And how can we refuse to let a sentence take place till it be reversed? And what confusion would follow in Christendom, if they should serve us so abroad, and give no credit to our sentences. ’ ” (Emphasis supplied.)

The grounds, then, for overturning a foreign judgment are the same as those for overturning the judgment of a sister State with the additional qualification that a foreign judgment will not be recognized if it contravenes our public policy. If there is jurisdiction in the foreign court and the judgment does not contravene our public policy such a judgment will be accorded recognition. The burden of proving that such a judgment does contravene our public policy, like the burden of proving lack of jurisdiction, is on the plaintiff, of course (see Gould v. Gould, supra).

The Mexican decree to be procured here will not be invalid until it has been declared so. Like a sister State decree it is voidable only. Until it is declared void it has effect and will be as injurious and harmful to plaintiff’s rights as a decree obtained in a sister State.

It is no answer to plaintiff’s problem for us to declare on this appeal that the Mexican decree defendant will procure will be “a clear legal nullity ”, That conclusion follows only because we must take as true on this motion the allegation in the complaint that defendant appeared in Mexico on November 5,1954, solely for the purpose of signing divorce papers and not for the purpose of residing there, remaining at all times a resident and domiciliary of New York State. In the declaratory judgment action plaintiff will have to prove that allegation. As I have already shown, if plaintiff’s complaint alleged a sham residence in a sister State rather than in Mexico, we would authorize injunctive relief despite the fact that a decree so procured would likewise be “a clear legal nullity”. The hazards of both decrees flow from their voidable nature. If we deny plaintiff the right to injunctive relief we will be placing her in a position where she cannot prevent a so-called legal nullity ’ ’ from coming into existence, yet in order to have this “ legal nullity ” so adjudged she will have to prove, in an action for a declaratory judgment, the self-same allegations presently before us. In the interim her rights may be seriously impaired as a consequence of the existence of the Mexican decree which, on its face, appears to be valid. As the Appellate Division has said in this case: ‘1 Time has shown us that there are many uses to which such a judgment may be put to cause a wife expense and litigation. It is of little help to tell the wife that the foreign decree is invalid and she has nothing to fear; that she may subsequently commence an action for a declaratory judgment. We have only to look at the present record to find the facts that cause vexation and difficulty not only to the parties but to the courts. Here, the husband in his answering affidavit complains about the permanent alimony allowed in the separation action although he did not appeal from the decree providing for-such payments. He states that it amounts to 35% of his net income before taxes for the year 1953 and 42% thereof for. the year 1954. Yet, he is willing and anxious to enter upon another marital venture. It must be recognized from experience that in such event the court will be met with the problem upon a motion to reduce the amount of permanent alimony as' to the division of a stated amount of income between the.former wife on the one hand and the husband and present wife on the other. ’ ’

It is traditional for equity to restrain persons from doing acts which will work an injury to others, and are for that, reason contrary to equity-and good conscience. We should riot-permit defendant to injure plaintiff upon the theory that a.cure in,.the form of a declaratory judgment is at all times available to plaintiff when experience demonstrates that it is,: at best, an inadequate and incomplete cure. -

The order of the Appellate Division should be affirmed. ..

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

Orders reversed, etc.


author: Van Voorhis, J.

text:
    The People of the State of New York, Respondent, v. Philip Travato, Appellant.
    Argued December 1, 1995;
    decided December 28, 1955.

      Joseph Winston and Sidney R. Siben for appellant.
    I. At the end of the trial, defendant’s motion to dismiss should have been granted since the proof presented fell below the standard required to rebut the presumption of defendant's innocence. (People v. Ledwon, 153 N. Y. 10; People v. Lewis, 275 N. Y. 33; People v. Bearden, 290 N. Y. 478; People v. Gluck, 188 N. Y. 167; People v. Wrieden, 299 N. Y. 425.) II. There was no evidence to warrant sending to the jury defendant’s alleged possession of burglar’s tools in violation of section 408 of the Penal Law. (People v. Kobryn, 290 N. Y. 897; People v. Birnbaum, 208 App. Div. 476; People v. Jenman, 296 N. Y. 269.) III. Reversible error was committed.when witnesses for the People persistently made reference to the fact that defendant would not speak after being arrested, and further error was committed when the Judge adverted to this in his charge to the jury. (People v. Rutigliano, 261 N. Y. 103; People v. Allen, 300 N. Y. 222; People v. Infantino, 224 App. Div. 193; People v. Abel, 298 N. Y. 333; People v. Mleczko, 298 N. Y. 153; People v. Hyman, 284 App. Div. 347, 308 N. Y. 794.)

      Harry C. Brenner, District Attorney (Henry Tasker of counsel), for respondent.
    I. The guilt of defendant was established beyond a reasonable doubt. (People v. Birnbaum, 208 App. Div. 476.) II. Defendant, received a fair trial. (People v. Slover, 232 N. Y. 264; People v. Mleczko, 298 N. Y. 153; People v. Buchalter, 289 N. Y. 181.)
   Van Voorhis, J.

Defendant has been convicted after a trial of burglary in the third degree, and of grand larceny in the first degree, in connection with the theft of fifteen sewing machines taken from the Wonderknit Factory on South Fourteenth Street, in the Village of Lindenhurst, Suffolk County, Long Island. He has also been convicted of having burglar’s tools in his possession. These exploits were conducted with an accomplice, according to the indictment, named Henry Fanning, who pleaded guilty and exonerated defendant if his testimony is to be believed.

The evidence against defendant was mainly circumstantial. Fanning’s version is that on the evening of September 1, 1952, he asked defendant to keep him company on an automobile ride from his home in Brooklyn to call upon his mother at Copiague, near Lindenhurst, Long Island, and that when they came to Lindenhurst, he dropped defendant off at a bar and grill, and told him that he would call for him later after visiting his mother. Fanning testified that when he discovered that his mother had retired for the night, he burglarized the Wonderknit Factory instead of visiting her. Almost immediately after the burglary had been accomplished, Fanning and defendant were discovered by the police in Fanning’s automobile, with the fifteen sewing machines in the back seat which had been stolen from Wonderknit. Defendant’s hands were oily and greasy at the time of their arrest, and his shirt and the top of his trousers were covered with fresh oil. In this oil and grease were little red and white cuttings of textile material or lint, which were also discovered in scrapings beneath defendant’s fingernails as shown by microscopic examinations at the police laboratory. Fanning testified that defendant’s clothes were clean when they left Brooklyn. These cotton fibers were identified by the laboratory technician as cotton lint similar to that which was present upon the sewing machines. These circumstances, except for error in the admission of evidence and in the charge, would be sufficient to sustain defendant’s conviction of third degree burglary and of grand larceny in the first degree, upon the basis that he and Fanning were in recent and exclusive possession of the fruits of these crimes (People v. Galbo, 218 N. Y. 283, 290).

Nevertheless, defendant’s conviction of these crimes must be reversed and a new trial granted with respect to them by reason of error in the reception of evidence, which was aggravated rather than corrected in the charge. The presence of oil, grease and lint upon defendant’s clothing was treated as an important link in the chain of circumstantial evidence connecting him with the commission of these crimes, and this was admissible evidence of an important kind. It became of consequence to learn where and how defendant got this oil, grease and lint upon his shirt and trousers. It was so noticeable when he was arrested that the police officers questioned him about it on the scene. All of this tends to make one believe that defendant participated actively in this affair. The difficulty in affirming defendant’s conviction upon these charges consists, however, in the circumstance that one of the arresting policemen, and also an investigator attached to the District Attorney’s office, were permitted to testify that repeatedly defendant refused to answer where he got this oil and grease upon his hands and clothing. It is “ a principle now firmly established in the law of this State that ‘ a person in custody accused of a crime is under no duty to speak and that his silence should not be counted as giving assent. ’ ” (Lewis, J., quoting from People v. Pignataro, 263 N. Y. 229, 236, in People v. Abel, 298 N. Y. 333, 335.) In People v. Butigliano (261 N. Y. 103, 107), it was said per Pound, Ch. J.: “No cautious person, when in custody, accused of crime would care to enter into a discussion of his guilt or innocence with his captors and co-defendants, when what he said might be used against him. * * * He is then under no duty to speak and his silence should not be counted as giving assent to what he hears. If he had counsel, he would doubtless be advised not to talk. If he had not, he should not be prejudiced thereby. ’ ’

When it came to the charge, the court did not instruct the jury that defendant had the right to remain silent, and that his refusal to explain how his clothing and hands became soiled signified nothing, but, instead, the language of the charge appeared to imply that these refusals to talk might be regarded as evidence of guilt. The jury were told, concerning Police Officer Ford: ‘ ‘ And you will recall, if it agrees with your recollection, that he asked the defendant when he was questioning the defendant, how he got his clothes greasy and oily, and the defendant refused to answer.”

Although defendant’s counsel took no exception to the charge, the point is raised by defendant’s motion to strike out Officer Ford’s testimony about defendant’s refusal to answer questions of this nature. It was not possible for defendant’s trial counsel to know in advance what Officer Ford was about to say upon the witness stand, and there would have been nothing objectionable in his testifying to some admission against interest or confession which defense counsel probably expected the witness was about to state that the defendant had made to him. However, after it appeared that the witness was merely being interrogated in order to develop that defendant refused to answer damaging questions while he was in custody, then, for the first time, was it appropriate for defendant’s counsel to intervene, and he did so, in the customary manner, by moving to strike out the testimony. The court refused to strike it out upon the basis that defendant’s counsel had opened the door, saying: “No; I think you brought that out yourself — you asked for conversations of the Defendant, conversations the Defendant had with the officers. I think he is permitted to bring it out now. ’ ’

This was incorrect. Defendant’s counsel had not asked for any conversation with defendant while Officer Ford was on the stand, inasmuch as his examination in chief had just begun as a witness for the People, and there had been no cross-examinatian. What the Trial Judge referred to was evidently a colloquy during the direct examination of Police Officer Poldino, who had. previously testified. The prosecuting attorney had addressed a question to Poldino: ‘ ‘ What, if anything — did you say anything to him about what occurred at the Wonderknit Factory? ” (Italics supplied.)

To this defendant’s counsel said:

“ I am going to object, your Honor. If they want conversation, fine, but not what the police officer said to the Defendant.
“ The Court: I think he is just directing his attention to some particular phase of the conversation. I think it is permissible. Objection overruled.”

The objection taken was proper. Its being overruled was not reversible error, inasmuch as Poldino afterward testified to nothing which was inadmissible. Nevertheless, it was erroneous for the Trial Judge to construe that objection, when it caine to the examination of Ford, as having had the effect of a waiver by .defendant’s counsel of the right to object to use by the prosecution of defendant’s silence or refusal to answer during his inquisition. It happened that Poldino testified that defendant gave an explanation of how he got the grease and other material upon his hands and clothing, viz., that he was a stevedore and worked on the New York City docks. Poldino’s testimony differed, in this respect, from that of the subsequent witnesses Ford and Investigator Gardiner. The valid objection to the question which has been mentioned which the prosecuting attorney addressed to Poldino, could not be interpreted as having surrendered defendant’s right to object to testimony by Ford that the defendant refused to answer when he was asked how his hands and clothing became soiled in this manner, or to move to strike it out.

Defendant’s conviction of possessing burglar’s tools in violation of section 408 of the Penal Law must be reversed and that charge dismissed. There is testimony that there were screw drivers and gloves in the glove compartment of Fanning’s automobile. Testimony was stricken from the record that a hacksaw, hammer, chisels and crowbar were found locked in the trunk compartment. The record contains insufficient basis to sustain the conviction upon this count (People v. Spillman, 309 N. Y. 295).

The judgment of conviction of defendant is reversed, the third count in the indictment is dismissed charging him with possession of burglar’s instruments contrary to section 408 of the Penal Law, and a new trial is ordered under the first and second counts charging defendant with burglary, third degree, and grand larceny in the first degree.

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

Judgments, insofar as they convict defendant of the crime of possession of burglar’s instruments, reversed and count 3 of the indictment dismissed and, insofar as they convict him of the crimes of burglary, third degree, and grand larceny, first degree, reversed and, as to counts 1 and 2 of the indictment, a new trial is ordered.

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Desmond and Dye, JJ.


author: Conway, Ch. J.

text:
    In the Matter of the Public Administrator of the County of New York, as Administrator of the Estate of James Trevor, Deceased, Respondent. Manufacturers Trust Company, Appellant.
    Submitted October 3, 1955;
    decided December 28, 1955.

      William J. Granger and Donald F. Malm, Jr., for appellant.
    The statutory jurisdiction requisite to support the decree made by the Surrogate is lacking. (Matter of Hyams, 237 N. Y. 211; Matter of Walker, 136 N. Y. 20; Matter of Delaney, 256 N. Y. 315; Matter of Holden, 264 N. Y. 215; Fidelity & Gas. Co. v. Farmers Nat. Bank, 275 N. Y. 194; Sundail Constr. Co. v. Liberty Bank, 277 N. Y. 137; Solicitor for Affairs of His Majesty’s Treasury v. Bankers Trust Co., 304 N. Y. 282; Baldwin’s Bank of Penn Yan v. Smith, 215 N. Y. 76; Matter of Rubinstein, 169 Misc. 273; Matter of White, 119 App. Div. 140; Matter of Brasil, 219 App. Div. 594; Matter of Hammer, 237 App. Div. 497, 261 N. Y. 677; Matter of Arduini, 243 App. Div. 10; Matter of Forrest, 234 App. Div. 890, 259 N. Y. 553; Matter of Hitchings, 281 App. Div. 202.)

      Joseph T. Arenson for respondent.
    The Surrogate’s Court had jurisdiction to determine the title to the bank account maintained by decedent with appellant in the name of Earl Clifford and to direct payment of the proceeds thereof to respondent. (Matter of Newsome, 179 Misc. 862; Matter of Hirsch, 202 Misc. 561; Matter of Goldstein, 299 N. Y. 43; Matter of Runk, 200 N. Y. 447; Matter of Lyon, 266 N. Y. 219; Matter of Raymond v. Davis, 248 N. Y. 67; Matter of Drellich, 254 App. Div. 380; Matter of O’Flyn, 174 Misc. 1025; Matter of Beall, 184 Misc. 881; Matter of Hyams, 237 N. Y. 211; Matter of Walker, 136 N. Y. 20; Matter of Wilson, 252 N. Y. 155.)
   Conway, Ch. J.

During his lifetime the decedent, James Trevor, had been the recipient of city welfare benefits. After his death three bank books in the names of James Trevor, Paul Weber and Earl Clifford, respectively, were found in his room. Thereafter, letters of administration were issued to the Public Administrator of the County of New York who, as administrator of the estate of James Trevor, also known as Paul Weber and Earl Clifford, instituted the present discovery proceeding in the Surrogate’s Court.

In its answer the trust company admitted the existence of the account which had been opened in the name of one ‘ Earl Clifford ” but set up two aErmative defenses: (1) That the relationship between the trust company and its depositor was that of debtor and creditor and, accordingly, that the Surrogate’s Court had no jurisdiction to issue a decree directing the trust company to pay over the balance standing to the credit of the account, and (2) that it could not with impunity pay over the funds in question to the petitioner in the absence of unequivocal proof that James Trevor and its depositor, Earl Clifford, were one and the same person.

The Surrogate found that the bank account in the trust company in the name of Earl Clifford was an asset and the property of the estate of James Trevor and directed the trust company to deliver the proceeds of the account to the Public Adminisistrator, as administrator of the estate of James Trevor. The Appellate Division has aErmed by a divided court.

On this appeal the sole contention of the trust company is that sections 205 and 206 of the Surrogate’s Court Act, under which this proceeding was brought, do not confer upon the Surrogate’s Court the power to direct the payment over of the balance standing to the credit of an ordinary bank deposit account to an estate representative of a deceased depositor.

Section 205 of the Surrogate’s Court Act, entitled “ Proceedings to discover property withheld ’ ’, authorizes the initiation of a discovery proceeding upon a petition alleging: “ any facts tending to show that money or other personal property, or the proceeds or value thereof * * * is in the possession, under the control or within the knowledge or information of a person who withholds the same * * If satisfied that reasonable grounds exist, the Surrogate must then order an inquiry regarding the property and may determine adverse claims to the property which become apparent during the proceedings.

Section 206 of the act then provides: ‘ ‘ If it appears that the petitioner is entitled to the possession of the property, the decree shall direct delivery thereof to him or, if the property shall have been diverted or disposed of, the decree may direct payment of the proceeds or value of such property or may impress a trust upon such proceeds or make any determination which a court of equity might decree in following trust property or funds.”

While the statute speaks in broad and unqualified terms of ‘ ‘ money or other personal property, or the proceeds or value thereof ”, the decisions interpreting that language disclose that it was not the intention of the Legislature that all estate claims were to be adjusted by way of a discovery proceeding. The purpose of such a proceeding in the Surrogate’s Court is to obtain the possession of specific personal property or money which belongs to the estate, or the value of the proceeds thereof in the event of the disposal of the specific property, and which is in the possession, under the control or within the knowledge or information of the person withholding it (see Matter of Ehrlich, 126 Misc. 673; Matter of Sichel, 162 Misc. 2; and Matter of Wilson, 252 N. Y. 155, 157). As was pointed out by Surrogate Wingate in Matter of Lusher (159 Misc. 387, 389): “ The line of demarkation between the instances in which the court has jurisdiction and those in which it has not, is wholly unmistakable. If the genesis of the obligation of the respondent was predicated on the possession of an asset, jurisdiction inheres. If it was based merely on a general claim against him, purely in personam, it does not. ’ ’ Thus property concerning which discovery has been held a proper remedy for recovery includes, among others, shares of stock, insurance policy proceeds, papers relating to financial affairs of deceased and other documents, death benefit from a labor organization, interest in a mortgage, a deposit of foreign money, secret commissions, money of a client held in trust by attorney, proceeds of sale of personal property, and securities or money commingled with trust funds.

As it is pointed out in Jessup-Bedfield: “ Disregarding assets for which discovery lies but as to which the remedy fails as a matter of proof, there are distinct types of assets that cannot be sought by discovery. One of these is a common debt. Many cases attempting such recovery which have failed on jurisdictional grounds * * * [are to be found] [see, e.g., Matter of Thomas, 235 App. Div. 450; Matter of Carey, 11 App. Div. 289; Matter of Thoms, 165 Misc. 398; Matter of Faulkner, 134 Misc. 507; Matter of Bawer, 132 Misc. 568, affd. 226 App. Div. 866]. The wonder is that the effort is so persistently undertaken.” (4 Jessup-Bedfield, Surrogates’ Law and Practice, § 3058.) The underlying theory of those cases is that the Legislature has, by means of a discovery proceeding, vested in the Surrogate’s Court jurisdiction to aid a personal representative in his duty to recover property of the decedent or of the estate or the proceeds of the sale of such property but has not vested in the Surrogate’s Court jurisdiction over actions at law for the recovery of common debts or to enforce ordinary contract obligations and that an action to establish and enforce a debt must still be brought in the common-law forums. The nature of such an action is in personam and it does not come within the general purview of the statute authorizing in rem discovery proceedings. The relationship between a bank and its depositor is that of debtor and creditor with the result that the obligation of the bank to the depositor becomes merely a chose of action in the possession of the depositor (see, e.g., Solicitor for Affairs of His Majesty’s Treasury v. Bankers Trust Co., 304 N. Y. 282; Fidelity & Cas. Co. v. Farmers Nat. Bank, 275 N. Y. 194; Matter of Holden, 264 N. Y. 215; Matter of Delaney, 256 N. Y. 315; Baldwin’s Bank of Penn Yan v. Smith, 215 N. Y. 76).

The debt from the trust company here to its depositor, ‘ ‘ Earl Clifford ’ ’, is not different in essence from any other debt arising on a contract. The chose in action 'possessed by the estate of decedent is not property withheld by the trust company. Nor can it be said that the trust company holds proceeds or value arising from diversion or other disposition of property which belonged to the decedent. The trust company has never been in possession, as such, of any property of decedent which it could divert or dispose of, and no proceeds or value arising from a disposition of any of decedent’s property by other persons has ever come into the trust company’s hands. For the foregoing reasons there is a line of authorities holding that the Surrogate’s Court does not have jurisdiction to direct payment of the balance in a decedent’s bank account to his estate representative (see, e.g., Matter of Hitchings, 281 App. Div. 202; Matter of Hammer, 237 App. Div. 497, affd. without opinion 261 N. Y. 677; Matter of Brazil, 219 App. Div. 594; Matter of White, 119 App. Div. 140).

Matter of Akin (248 N. Y. 202) and Matter of Wilson (252 N. Y. 155, supra) do not suggest a contrary result. They merely indicate that the Surrogate’s Court now has jurisdiction to dispose of every claim to property which should be delivered to an executor, administrator or guardian. Money improperly drawn from a bank is property which comes under the jurisdiction of the Surrogate’s Court in discovery proceedings. It then becomes a trust fund or “ specific money ” in the hands of the wrongful holder over which the Surrogate’s Court may exercise control. Here, the trust company had no specific money of the deceased in its hands. It merely owed the estate money.

The 1939 amendments to sections 205 and 206 did not add to the power of the Surrogate with respect to directing payment of a bank deposit. According to the Bill Notes to chapter 343 of the Laws of 1939, the amendments had a twofold purpose: (1) authorizing a testamentary trustee to bring discovery proceedings, and (2) permitting the bringing in of a third party claiming the right to possession of the property.

Accordingly, we are presented with a situation where the Surrogate was without jurisdiction to entertain a discovery proceeding. It necessarily follows that the decree of the Surrogate is void. (Matter of Walker, 136 N. Y. 20; Chemung Canal Bank v. Judson, 8 N. Y. 254.) The trust company may not be asked to content itself with the Surrogate’s decree or be told that the Surrogate’s decree will protect it against a possible later claim as much as a judgment in an action, for the decree of a court lacking jurisdiction of the subject matter is a nullity which affords no protection since it can be overturned at any time (see Matter of Hitchings, 281 App. Div. 202, supra).

The order of the Appellate Division and the decree of the Surrogates’ Court should be reversed and the petition dismissed, with costs in this court and in the Appellate Division.

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

Order reversed, etc.

        Matter of Babcock, 85 Misc. 256, affd. 169 App. Div. 903, affd. 216 N. Y. 717.

        Matter of Howley, 133 Misc. 34; Matter of Reilly, 111 Misc. 66.

        Matter of Ryan, 115 Misc. 472.

        Matter of Reilly, 111 Misc. 66, supra.

        Matter of Hauber, 136 Misc. 798.

        Matter of Gruen, 1 Misc. 2d 41.

        Matter of Browning, 177 Misc. 328.

        Matter of Ostrow, 162 Misc. 783.

        Matter of Fraley, 129 Misc. 803.

        Matter of Rubin, 168 Misc. 81.