author: Van Voorhis, J.

text:
    The People of the State of New York, Respondent, v. Frederick Spillman, Alias Robert Sunderland, Frederick Leo Spellman and Fred Williams, Appellant.
    Argued October 4, 1955;
    decided November 17, 1955.

      John McKim Minton for appellant.
    I. Defendant’s possession of the pistol was not proved beyond a reasonable doubt. (People v. Russo, 278 App. Div. 98, 303 N. Y. 673; People v. Crenshaw, 202 Misc. 179; People v. Tropiano, 294 N. Y. 940; People v. Brasch, 193 N. Y. 46; People v. Cuozzo, 292 N. Y. 85; People v. Persce, 204 N. Y. 397; People v. Leavitt, 301 N. Y. 113; People v. Wolosky, 296 N. Y. 236.) II. Defendant’s guilt of burglary and larceny was not proved beyond a reasonable doubt. (People v. Foley, 283 App. Div. 239, 307 N. Y. 490; People v. Galbo, 218 N. Y. 283.) III. Proof is completely lacking that defendant was in possession of burglar’s instruments as a fourth felony offense. IV". The admission in evidence of the newspaper clippings was reversible error. (People v. Molineux, 168 N. Y. 264; People v. Rosenthal, 289 N. Y. 482; People v. Kress, 284 N. Y. 452.) V. It was error to admit proof of defendant’s prior convictions as part of the People’s case. People v. De Santis (305 N. Y. 44), relied upon by the People, should be reversed because the rule there enunciated is archaic and only productive of injustice and because it deprives defendant of procedural due process required by the State and Federal Constitutions. (People v. Sickles, 156 N. Y. 541; Johnson v. People, 55 N. Y. 512; People v. Gowasky, 244 N. Y. 451; Matter of Grifenhagen v. Ordway, 218 N. Y. 451; Woods v. Lancet, 303 N. Y. 349; People v. Morton, 284 App. Div. 413.)

      T. Vincent Quinn, District Attorney (George J. Regan of counsel), for respondent.
    I. Defendant’s possession of the pistol was proved beyond a reasonable doubt. (People v. Brasch, 193 N. Y. 46; People v. Panitz, 251 App. Div. 276.) II. Appellant’s guilt of burglary and larceny was proved beyond a reasonable doubt. (Knickerbocker v. People, 43 N. Y. 177; People v. Spivak, 237 N. Y. 460; People v. Di Lorenzo, 301 N. Y. 374; People v. Galbo, 218 N. Y. 283; Stover v. People, 56 N. Y. 315; Goldstein v. People, 82 N. Y. 231; People v. Rogan, 223 App. Div. 242, 249 N. Y. 544; People v. Silinsky, 235 App. Div. 289; People v. Berger, 260 App. Div. 687; People v. Sobin, 179 Misc. 999; People v. Vaccarella, 257 App. Div. 461.) III. It was proper to admit proof of defendant’s prior convictions as part of the People’s case. (People v. De Santis, 305 N. Y. 44; People v. Gowasky, 244 N. Y. 451.) IV. There was sufficient evidence to convict defendant of the possession of burglar’s tools. (People v. Morgan, 59 Hun 619.) V. The newspaper clippings were properly received in evidence in the absence of a valid objection; and though error was committed in refusing at the end of the case to strike them from the evidence, it was not prejudicial to defendant on the circumstances of this case. (People v. Cummins, 209 N. Y. 283.) VI. The credibility of the witnesses is a question primarily for the trial court. (People v. Sanducci, 195 N. Y. 361; People v. Gaimari, 176 N. Y. 84.)
   Van Voorhis, J.

Defendant has been convicted of: (1) burglary, third degree; (2) petit larceny; (3) carrying a dangerous weapon as a felony; (4) possession of burglar’s instruments as a felony; (5) unlawful possession of a dangerous weapon as a felony and (6) carrying a dangerous weapon as a felony; all as fourth felony offenses, except that of petit larceny.

In September, 1948, the Fealy home in Springfield Gardens was burglarized. This occurred while Mrs. Fealy was attending the funeral of her husband. The property taken by the burglar was a pistol which had been legally possessed by the late Mr. Fealy, and which had been kept in a holster in one of the bureau drawers. This pistol was found in the luggage compartment of an automobile owned by defendant’s wife to which defendant had a set of keys. There is testimony of an admission by defendant that he had recently bought the pistol from one Moore.

Defendant maintained that: (1) His possession of the pistol was not proved beyond a reasonable doubt. He argues that the presumption created by section 1898-a of the Penal Law that The presence in an automobile * * * of * * * a pistol * * * shall be presumptive evidence of its illegal possession by all the persons found in such automobile at the time such weapon * * * is found ’ ’ is inapplicable here for the reason that the car was the property of his wife, he was not in the car when the police placed him under arrest, the pistol was not found in the car until it was searched at the station house after defendant had been arrested, and that he was in the car then only because the police had ordered him to get into it and to drive it to the station.

(2) His guilt of burglary and larceny was not proved beyond a reasonable doubt. He argues that the testimony does not point inevitably to the recent and exclusive possession by him of the pistol which was stolen from the Pealy residence.

(3) Proof is lacking that he was in possession of burglar’s instruments as a fourth felony offense. The articles in question were two pairs of rubber gloves and a claw hammer.

(4) The admission in evidence of certain pages of newspapers containing obituary columns found in a dresser in defendant’s apartment, was reversible error. It is claimed that since the clippings were dated November 4th and 5th, they could not have related to the burglary of the Pealy residence, which occurred not later than September 15th, and that the only purpose in their introduction into evidence was to cause the jury to infer that defendant made a practice of burglarizing dead people’s homes during their funerals.

(5) It was error to admit proof of defendant’s prior convictions as part of the People’s case. Defendant argues that People v. De Santis (305 N. Y. 44) should be overruled.

With one exception, the charges against defendant all depend upon the People’s establishing that defendant was found in possession of a revolver which was discovered in the compartment of his wife’s car. The one other count in the indictment, charging possession of burglar’s instruments as a felony, must be dismissed inasmuch as rubber gloves and a claw hammer, by themselves, are not burglar’s tools. The contention cannot be sustained that since these instruments could be used in committing burglary, therefore they are tools of. this description. It is admitted that they would not be subject to that characterization if found in the possession of an honest man, but it is asserted that they become contraband when possessed by one who would be likely to use them to commit burglary, i.e., that they are burglar’s tools only when in the possession of a burglar. The law does not indulge in that assumption, at least in the absence of evidence that they have been used by defendant in the commission of burglary.

The other counts in the indictment depend, as has been stated, upon possession by defendant of this revolver. He was not in the automobile when the police arrived at his premises; consequently section 1898-a of the Penal Law does not apply. It renders the presence in the automobile of the pistol ‘ ‘ presumptive evidence of its illegal possession by all the persons found in such automobile at the time when such weapon * * * is found ”. In this instance, defendant was not in the automobile. The circumstance that he entered it at the police officer’s command and drove it to the station house, does not spell out guilty presence in the vehicle so as to give effect to section 1898-a (People v. Russo, 303 N. Y. 673; People v. Tropiano, 294 N. Y. 940).

Nevertheless, the fact is established that this revolver was discovered in the compartment of defendant’s wife’s automobile, to which defendant had a key, and, although this in itself does not demonstrate that defendant had possession, his admissions to the police officers are in evidence that he had bought this weapon a short time previously. Do these circumstances, coupled with this admission, constitute evidence of possession in defendant apart from section 1898-a of the Penal Law which has been discussed?

Insofar as the charges of burglary, third degree, and of petit larceny are concerned, recent and exclusive possession of this pistol (which is the article claimed to have been stolen in connection with the burglary) would be evidence that defendant was the burglar and the thief (People v. Galbo, 218 N. Y. 283, 290; People v. Spivak, 237 N. Y. 460, 461; People v. Di Lorenzo, 301 N. Y. 374, 375); whereas, on the charges of possessing and carrying a dangerous weapon without a written permit in violation of subdivisions 4 and 5 of section 1897 of the Penal Law, possession is not merely evidence but is the essence of the crime itself — the corpus delicti. We shall consider first whether the evidence in the record is sufficient to sustain the latter charges.

Section 395 of the Code of Criminal Procedure provides that the confession of a defendant is not enough to warrant his conviction without additional proof that the crime charged has been committed. Insofar as defendant is charged with violation of subdivisions 4 and 5 of section 1897 in possessing or carrying this revolver without a written permit, it would not be sufficient to sustain his conviction merely that the jury believed his admissions that he had previously bought this weapon from Moore. There has to be “ additional proof that the crime charged has been committed.” The immediate question is whether the presence of this pistol in defendant’s wife’s automobile in a compartment to which defendant had a duplicate key, supplies this additional proof required by section 395 of the Code of Criminal Procedure. In People v. Cuozzo (292 N. Y. 85), this court held that the remains of the body of a girl who had been run over by a railroad train had no tendency to prove that she had met her death by criminal means. Therefore, it was held that the conviction of murder in the first degree depended entirely upon the confession of the defendant that he had struck her on the head and placed her body on the track. There was held to have been no evidence in addition to the confession to prove the corpus delicti, which meant, in that case, that the discovery of the mangled body of the deceased after being run over by the train supplied no circumstantial evidence that she had been the victim of foul play. The conviction was reversed for the reason that there was no proof independent of the confession that the crime charged had been committed. If there had been independent proof that the crime charged had been committed by someone, the defendant’s confession would have been sufficient to have connected him with its perpetration (People v. Roach, 215 N. Y. 592; People v. Brasch, 193 N. Y. 46; People v. Jaehne, 103 N. Y. 182, 199). The rule of these cases was applied in People v. Lytton (257 N. Y. 310) to the situation where a homicide was proved by independent evidence, but the defendant’s conviction of felony murder was otherwise upheld on his confession that he had shot the deceased while engaged in the commission of a burglary.

In the present instance, we are confronted with a situation where a revolver licensed in the name of Fealy was found in the locked compartment of an automobile belonging to defendant’s wife. It thus appears that Fealy, but neither defendant nor his wife, had a written permit to possess this weapon. It was not in Fealy’s possession when it was discovered in defendant’s wife’s automobile. Therefore, the crime of possessing a dangerous weapon in violation of subdivision 4 of section 1897 of the Penal Law was established by independent evidence to have been committed by someone. When coupled with the fact that defendant had access to the compartment where this gun was contained by the possession of a duplicate key, his statements to the police officers that he had bought it a short time previously are sufficient, in our view, to satisfy the requirements of section 395 of the Code of Criminal Procedure. It could be found by the trial court that this weapon was within the immediate control and reach of the accused, available for unlawful use if desired (People v. Persce, 204 N. Y. 397). The statement by defendant to the police officers that it was his gun connected him with the crime of unlawful possession which independent evidence established was being committed by someone. People v. Lo Turco (256 App. Div. 1098, affd. 280 N. Y. 844) is to the same effect. There two revolvers were found in a yard next door to a defendant’s residence, where they had been concealed in a barrel by the defendant’s wife just prior to the police officer’s visit. This was held to have been sufficient corroboration of his admission to the arresting officer that he had brought these revolvers from Yonkers to his residence in Brooklyn and liked ‘ ‘ to play with them * * * and do some shooting ’ ’.

Recent and exclusive possession, made out by the admissions coupled with these other circumstances, would be enough to sustain defendant’s conviction of burglary, third degree, and petit larceny (People v. Galbo, supra; People v. Spivak, supra; People v. Di Lorenzo, supra).

Whether a new trial should be granted on account of errors in the admission of evidence presents another question. The introduction into evidence of the pages of newspaper obituary columns found in the dresser of defendant’s bedroom constituted error. These were dated November 4th and 5th, more than six weeks subsequent to this burglary, and the only purpose of their introduction into evidence was to convey to the jury the idea that burglarizing Mr. Nealy’s apartment at the time of his funeral conformed to a pattern of conduct which defendant was pursuing in the case of other persons to burglarize their houses while they were being buried. Such proof violates the settled rule excluding evidence of similar, distinct crimes (People v. Molineux, 168 N. Y. 264; People v. Rosenthal, 289 N. Y. 482, 488).

The count should be dismissed which charges possession of burglar’s instruments as a felony. Defendant’s conviction of possessing a dangerous weapon as a felony, burglary, third degree, and petit larceny should be reversed and a new trial granted due to error in the admission into evidence of the obituary notices. There is no evidence that this weapon was carried concealed on defendant’s person, consequently the charges of “ carrying ” as distinct from possession in violation of subdivision 4 of section 1897 of the Penal Law must be dismissed.

The judgments, insofar as they convict defendant of the crimes of carrying a dangerous weapon as a felony and possession of burglar’s instruments as a felony, should be reversed and counts 3, 4 and 6 of the indictment dismissed and, insofar as they convict defendant of the crimes of burglary, third degree as a felony, petit larceny and unlawful possession of a dangerous weapon as a felony, reversed and, as to counts 1, 2 and 5, a new trial ordered.

Conway, Ch. J., Fuld and Burke, JJ., concur with Van Voorhis, J.; Desmond, J., dissents as to the count charging the possession of a dangerous weapon, and votes to dismiss that count upon the ground that there was no sufficient proof of guilt thereof; Dye and Froessel, JJ., taking no part.

‘ Judgments reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Mollie Rosenberg, Appellant, against City of New York, Respondent.
    Argued June 8, 1955;
    decided November 22, 1955.

      Stcmley Tessel, Alvin H. Zipnick and Bernard, Turkewits for appellant.
    I. The issues presented by this appeal are matters of law and do not involve fact or discretion. (Wass v. Stephens, 128 N. Y. 123; Mawhinney v. Millbrook Woolen Mills, 231 N. Y. 290; Adler v. Zimmerman, 233 N. Y. 431.) II. On the undisputed facts of this case, appellant was physically or mentally incapacitated, within the meaning of subdivision 5 of section 50-e of the General Municipal Law, during the ninety-day period. (Haines v. City of New York, 270 App. Div. 1003, 296 N. Y. 702; Bogle v. City of New York, 299 N. Y. 620; Matter of Haas v. Incorporated Vil. of Cedarhurst, 272 App. Div. 1031, 298 N. Y. 757.) III. Appellant’s rights were not forfeited by reason of the failure of her husband or some other person to file a notice of claim on her behalf. (Murphy v. Village of Fort Edward, 213 N. Y. 397; Biancoviso v. City of New York, 285 App. Div. 320.) IV. The nature and history of section 50-e of the General Municipal Law call for liberal and not strict construction. (Teresta v. City of New York, 304 N. Y. 440.)

      Peter Campbell Brown, Corporation Counsel (Seymour B. Quel and Ave Yeghenian of counsel), for respondent.
    The order appealed from should be affirmed since the findings of Special Term in favor of defendant on the factual issues have been approved by the Appellate Division. In addition, the order is of a discretionary nature and presents no question reviewable by this court. (Matter of Sullivan v. Town of Babylon, 277 App. Div. 791, 302 N. Y. 609; Matter of Donovan v. Board of Educ. of Peekskill Union Free School Dist., 277 App. Div. 904, 301 N. Y. 739; Matter of Martin v. School Bd. of Union Free Dist. No. 28, Long Beach, 301 N. Y. 233; Matter of Haas v. Village of Cedarhurst, 272 App. Div. 1031, 298 N. Y. 757; Matter of McEwan v. City of New York, 279 App. Div. 802, 304 N. Y. 628; de Baillet-

      Latour v. de Baillet-Latour, 301 N. Y. 428; Bata v. Bata, 306 N. Y. 96; Matter of McCarthy, 304 N. Y. 601; Hansen v. City of New York, 299 N. Y. 136; Los Angeles Investment Securities Corp. v. Joslyn, 282 N. Y. 438.)
   Van Voorhis, J.

This appeal involves section 50-e of the General Municipal Law. On July 3, 1954, Mollie Rosenberg, and her infant children, Gloria Rosenberg and Marvin Rosenberg, were injured in an automobile accident occasioned by a collision with another vehicle upon the lower level of the Manhattan Bridge. They were passengers in an automobile driven by her husband, who was himself injured slightly in the accident. The negligence charged against the City of New York consists in permitting the traveled surface to become disintegrated so as to allow the smooth, slippery metal portions beneath the covering of the roadway to be exposed, causing it to become ddngerous. Its condition is alleged to have become a public nuisance during rainy weather.

This appeal does not concern whether this alleged negligence on the part of the city would sustain a cause of action. The present issue is whether the ninety-day period permitted by section 50-e of the General Municipal Law should have been extended for the filing of a claim by petitioner on account of her incapacity resulting from the accident.

The accident happened, as above stated, on July 3, 1954. The ninety-day period expired on October 1, 1954. The notices of claim were filed on November 16, 1954.

Special Term denied all three applications to extend the time for filing in a memorandum, stating that the husband of appellant and the father of these infants, aged ten and sixteen respectively, was quite capable of presenting such claims in due time in behalf of the claimants (Matter of Adanuncio, 281 App. Div. 763). Neither were the infants so immature or so severely injured as to excuse the delay (Matter of Adanuncio, supra; Russo v. City of N. Y., 258 N. Y. 344).” The Appellate Division reversed as regards the infant claimants, stating that “ There are no circumstances which preclude, within the exercise of discretion, the granting of the motion on behalf of these infants. (Biancoviso v. City of New York, 285 N. Y. 320.) It is apparent that the city has knowledge of the condition of the roadway of the bridge.” Concerning the mother, who is the appellant here, the Appellate Division said: “ The appellant as well as someone on her behalf was capable of executing a notice within the statutory period. (Matter of Halloran v. Board of Educ. of City of N. Y., 271 App. Div. 830; Matter of Haas v. Incorporated Village of Cedarhurst, 272 App. Div. 1031; Matter of Sullivan v. Town of Babylon, 277 App. Div. 791; Matter of Donovan v. Board of Educ. of Peekskill Union Free School Dist., 277 App. Div. 904; Matter of Johnson v. City of New York, 278 N. Y. 945.) ”

Section 50-e of the G-eneral Municipal Law provides that the ninety-day notice may be extended for not more than a year Where the claimant is an infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim as provided in the foregoing subdivisions of this section within the time limited therefor ”. Application for such leave must be made prior to the commencement of an action to enforce the claim.

It thus appears that infancy or mental or physical incapacity fulfils the condition precedent, whereby “ the court, in its discretion, may grant leave to serve the notice of claim within a reasonable time after the expiration of the * * * [ninety days] specified in subdivision one.” The failure to serve the notice of claim must be due to disability resulting from infancy or incapacity. The Appellate Division held, in case of these infants, that failure to file their claims was caused by their being infants, and extended the time accordingly. No appeal has been taken by the city from that determination, so that the only issue before us is whether the time of appellant, the mother, ought similarly to have been enlarged. Appellant’s injuries were very severe, as will be pointed out in greater detail. The papers before the court do not draw in issue that she herself was incapacitated beyond the ninety-day period, or that she proceeded to file her claim as soon as was reasonably possible after her incapacity ceased. The effect of the decision by the Appellate Division is that her husband should have done it for her. There is nothing in the statute which states that a husband, brother, cousin, friend or other person must attend to the serving of a notice of claim if the injured person is incapacitated from doing so. In appellant’s case, vicarious service of notice of claim within the year was at most permissive but not mandatory. No claim can be filed, in any event, after the lapse of one year, but in this instance the year did not expire until July 4, 1955. The question is whether it is not enough that the claimant herself is incapacitated, without the necessity for the court to engage in a speculative inquiry concerning whether she and her husband were living together as husband and wife, who is a “ next friend ”, or to investigate the host of other considerations which would bear upon an assumed obligation to file by another in her behalf. It is true that in several of the Appellate Division decisions it has been stated that such an application should be denied where it has not been demonstrated that there was incapacity “ so as to prevent her from serving a notice of claim sworn to by her or by someone in her behalf.” (Matter of Sullivan v. Town of Babylon, 277 App. Div. 791, citing the other cases which are cited .on the point in the majority memorandum of the Appellate Division in this case.) None of those decisions involved the present undisputed evidence of incapacity on the part of the claimant due to injuries sustained in the accident. In each of them it would have been reasonably possible for the claimant in person to have executed a claim and to have attended to its service within the ninety-day period. Whether the ninety-day period is to be extended does not, at least in the case of an adult not adjudged to be mentally incompetent, depend upon whether there is someone other than the claimant who can act in the matter prior to the expiration of a year. Any idea of that sort probably originated from the irrevocable limitation which comes with a lapse of a year from the date of an accident. That requirement is absolute, and neither infancy, insanity nor physical or mental injuries sustained in the accident can eliminate that barrier. Therefore, if such a claim is to be prosecuted, it is absolutely necessary that before a year elapses someone other than the claimant shall attend to the presentation of the claim, even though the claimant may be totally incapacitated. Nothing in the statute, however, requires that someone else shall act for such an injured person as a condition precedent to the court’s extending the ninety-day period for less than a year. To adopt such a rule would, as previously stated, involve all sorts of complications, and the statute does not enact it.

The Appellate Division has held, in effect, that it lacked power to extend the time in appellant’s case. Inasmuch as it appears from the record as matter of law that she was incapacitated until her claim was filed, the Appellate Division was empowered to exercise its discretion concerning enlarging the time in appellant’s case in its sound judicial discretion. The statement in the Appellate Division’s memorandum that appellant was not incapacitated is equivalent to a statement that they never reached the exercise of discretion. Since the undisputed facts contained in the affidavits indicate that she was incapacitated, the Appellate Division erred upon a question of law, and should have assumed jurisdiction to decide the question in the exercise of its discretion. Ordinarily, under those circumstances, the matter would be remitted to the Appellate Division to exercise its discretion on the basis of her established incapacity concerning whether under the circumstances of the case her time should be extended.

It is apparent, however, that if appellant was incapacitated by her injuries as matter of law, then her situation exactly parallels that of her two children who are given the same status by reason of their infancy. As was pointed out above, section 50-e is drafted in the alternative so that either infancy or physical or mental incapacity provides a foundation on which the court may act. Having decided, in its discretion, that the time of the infants should be extended, the Appellate Division, in the exercise of the power to extend the time in the case of this appellant, could not, under the circumstances of this case, have refused to extend appellant’s time likewise without its decision being purely arbitrary. It thus indicated its exercise of discretion.

Appellant’s incapacity is established by the record as matter of law. Her injuries are thus stated in the affidavit of her attending physician: (1) Lacerations of the face. (2) Fracture of the right radius and right ulna. (3) Fracture of the nasal bone. (4) Fractures of the left tibia, left fibula, and left femur. (5) Fractures of the left ribs numbered 2, 3, 4, 5, 6, 7, and 10. (6) Indentation of the sternum and probable fracture of the sternum. (7) Brain concussion.” This doctor further states that “As a result of the severe physical and emotional shock that the patient sustained, she was in my opinion physically and mentally incapacitated from exerting the required mental effort to understand a notice of claim and the required physical effort to file a claim for a period of 105 days from the date of the accident.” He stated that for 77 days she remained in the hospital, that during this time she was under the influence of drugs much of the time, that she was removed to her home on September 17, 1954, and was thereafter confined to her home more than a month, during which period she exhibited symptoms of extreme depression; that, while at home, she was staining continually and was therefore confined to bed, that she is unable to dress herself and requires assistance in performing such elementary tasks as going to the toilet, that during the first month after her discharge from the hospital, she was unable to concentrate for any length of time on any subject, having periods of extreme depression, that she constantly complained of dizzy spells, severe headaches, and nausea. This affidavit is amplified by appellant’s own, in which, among other matters, she mentions that 120 stitches were taken in her face, that she was in great pain and spent much of the time in a drugged condition, that she retained her attorneys on November 11, 1954, and that they served her notice of claim on November 16, 1954, the five days’ delay on their part being due to an intervening weekend and the necessity for making an investigaton. These affidavits are not contradicted nor is their credibility attacked.

In view of all these injuries including about fifteen fractures, and the constant application of powerful sedatives which extended long after she had returned to her home, there could have been no question about her personal disability arising from physical and mental incapacity to file this claim. The only basis on which the Appellate Division could have found that she possessed such capacity is its expressed theory that her husband could have filed for her. That theory is erroneous as matter of law.

Service and filing of appellant’s notice of claim on November 16, 1954, is validated pursuant to section 50-e of the General Municipal Law as if made within the ninety-day period following the occurrence of the accident. For all purposes, including the purpose of any action commenced by appellant against the City of New York within the time limited by law, the claim shall be deemed to have been duly filed as provided by the order of this court entered July 8, 1955. (309 N. Y. 754.) Costs are awarded to appellant in all courts.

The order of the Appellate Division and that of Special Term should be reversed. Service and filing of appellant’s notice of claim on November 16,1954, is validated pursuant to section 50-e of the General Municipal Law as if made within the ninety-day period following the occurrence of the accident. For all purposes, including the purpose of any action commenced by appellant against the City of New York within the time limited by law, the claim shall be deemed to have been filed as provided by the order of this court entered July 8, 1955, with costs to appellant in all courts.

Conway, Ch. J., Froessel and Cohn , JJ., concur with Van Voorhis, J.; Desmond, Dye and Ftjld, JJ., dissent and vote to affirm.

Orders reversed, etc.

       Designated pursuant to section 5 of article VI of the State Constitution in place of Burke, J., disqualified.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Donald B. Winship, Appellant.
    Argued October 8, 1955;
    decided November 23, 1955.

      John W. Condon, Jr., for appellant.
    I. The verdict of the jury was contrary to law because the necessary element of fear was not proved. II. The evidence of identification presented against defendant was insufficient as a matter of law to overcome the presumption of innocence. (People v. Meehan, 256 App. Div. 268; People v. Cassidy, 160 App. Div. 651; People v. Seppi, 221 N. Y. 62; People v. Bearden, 290 N. Y. 478; People v. Gluck, 188 N. Y. 167; People v. Buchalter, 289 N. Y. 181.) III. The court erred in failing to conduct a hearing of the factual background contained in the motion of defendant to set aside the verdict and for a new trial. (People v. Cocco, 279 App. Div. 1129; People v. Burling, 303 N. Y. 382; People v. Leonti, 262 N. Y. 256; People v. Arata, 254 N. Y. 565; People v. Shilitano, 215 N. Y. 715; People v. Pauley, 281 App. Div. 223.) IV. The court erred in refusing defendant’s request to remain outside of the courtroom while the People’s witnesses gave their identification and description of the individual who perpetrated the crime for which defendant was indicted. (People v. Bragle, 88 N. Y. 585; People v. La Barbera, 274 N. Y. 339; People v. Sugar-

      man, 248 N. Y. 255; Diaz v. United States, 223 U. S. 442.) Y. The court erred in quashing defendant’s subpoena duces tecum.

      John F. Dwyer, District Attorney (Frederick M. Marshall of counsel), for respondent.
    I. The evidence was sufficient, as a matter of law, to warrant submission to the jury and supported the jury’s finding of guilt. (Mahoney v. People, 3 Hun 202.) II. The motion by appellant to set aside the verdict and for a new trial because of the alleged misconduct of a juror was properly denied. (People v. Durling, 303 N. Y. 382; People v. Sprague, 217 N. Y. 373; People v. Patrick, 182 N. Y. 131; People v. Leonti, 262 N. Y. 256; People v. Bishop, 66 App. Div. 415; People v. Mack, 35 App. Div. 114; People v. Gallagher, 75 App. Div. 39, 174 N. Y. 505; People v. Rosen, 251 App. Div. 584, 275 N. Y. 627.) III. The court’s denial of defendant’s motion to be excluded from the view of the People’s witnesses was proper. (People v. Strauss, 174 Misc. 881; People v. Defore, 242 N. Y. 13; People v. Gardner, 144 N. Y. 119; People v. Van Wormer, 175 N. Y. 188.) IV. The quashing of defendant’s subpoena duces tecum was proper and did not prejudice the rights of defendant. No exception was noted to the ruling of the court in quashing said subpoena, and the claim of error by appellant in this regard is not preserved for review. (People v. Pindar, 210 N. Y. 191; People v. Cummins, 209 N. Y. 283.)
   Per Curiam.

The defendant-appellant was convicted of second degree robbery and sentenced to seven and one-half to thirty years as a second felony offender.

The appellant has raised numerous grounds of error, only two of which merit discussion.

The appellant asserts that the trial court erred in refusing the defendant’s request for permission to remain outside of the courtroom while the People’s witnesses testified as to their description of the person who perpetrated the crime for which the defendant was indicted.

Section 356 of the Code of Criminal Procedure requires that the defendant must be personally present at the trial. Although he may waive this right to be present in court (People v. La Barbera, 274 N. Y. 339), nevertheless the People have the right to require his presence for the purpose of identification by its witnesses. A defendant must obtain the permission of the Trial Judge to be absent from a trial. (Barnett v. Russell, 299 Ky. 242; State v. Johnson, 82 Kan. 450.) The orderly administration of a trial requires this. The Trial Judge ‘ ‘ must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses.” (People v. Gardner, 144 N. Y. 119, 128.) Therefore, the refusal of the trial court to grant the motion of the defendant to remain outside the courtroom was not an abuse of discretion, or a denial of a statutory or constitutional privilege.

Appellant’s second point has merit. In the course of moving to dismiss the indictment on several grounds prior to sentencing, the defense counsel submitted three affidavits to the trial court, which stated, first, that every prospective juror was asked on the voir dire whether he had any connection with or was a member of a law enforcement agency; second, that one particular juror failed to reveal such a connection; third, that this juror was actually “ a member of the Civil Defense Auxiliary Police, attached- to the West Seneca Police ” and fourth, that the defense would have excused this juror had this fact been known to it. Defense counsel requested further time to explore the matter, but this request was denied. The trial court thereupon imposed sentence. No answering affidavits were submitted by the prosecution until after the motion for a hearing was denied.

Counsel are entitled to truthful answers to the questions which they propound on the voir dire. Although false answers at such time about inconsequential matters do not necessarily disqualify a juror (Sturrock v. State, 229 Ind. 161; Smith v. State, 105 Tex. Cr. 104), it is a matter which must be closely scrutinized to determine if any of defendant’s rights have been impaired thereby. Defendants are entitled to a full and fair disclosure of facts. It is only when they are armed with knowledge of the facts that they can determine whether to accept or reject a juror. If the prosecution had submitted answering-affidavits sufficient to challenge the movant’s statements at the time the trial court disposed of the motion, the trial court might have been justified in denying a hearing on the issues raised thereby. (People v. Rosen, 251 App. Div. 584, affd. 275 N. Y. 627.) Since on the motion it was uncontroverted that the juror did not reveal that he was a member of an auxiliary police force, we think further proof should be taken by affidavit or oral testimony in order that the trial court, before passing on the merits of the application for a new trial, and this court, shall be fully informed as to all the circumstances relating to the questioning on the voir dire as it pertained to the particular juror.

The final determination of this appeal will be withheld so that the defendant may promptly renew in the Supreme Court, Erie County, the motion for a new trial, upon affidavits and notice to the District Attorney, as limited by the Per Curiam opinion herein. This is in accord with our practice. (People v. Durling, 303 N. Y. 382.)

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

Final determination of appeal withheld, etc.


text:
    The People of the State of New York, Respondent, v. David Jacobs, Appellant.
    Argued October 6, 1955;
    decided November 23, 1955.

      David I. Shivitz and Arnold M. Leibowitz for appellant.
    I. Section 439 of the Penal Law was never intended to and does not cover the instant case. (Todd v. United States, 158 U. S. 278; People v. Phyfe, 136 N. Y. 554; People v. Shifrin, 301 N. Y. 445; People v. Shakun, 251 N. Y. 107; People v. Benc, 288 N. Y. 318; People v. Graf, 261 App. Div. 188; Chase v. New York Central R. R. Co., 26 N. Y. 523; McCarthy v. International Ry. Co., 126 App. Div. 182; People v. Hemleb, 127 App. Div. 356.) II. The evidence adduced was insufficient to sustain a conviction. (June Fabrics v. Teri Sue Fashions, 194 Misc. 267; Cragie v. Hadley, 99 N. Y. 131; Corrigan v. Bobbs-Merrill Co., 228 N. Y. 58; Gibney v. Marchay, 34 N. Y. 301; Orr & Co. v. Fireman’s Fund Ins. Co., 235 App. Div. 1.)

      Frank S. Hogan, District Attorney (Harold Boland Shapiro of counsel), for respondent.
    Defendant’s guilt was established beyond a reasonable doubt. (McCroskey v. Hamilton, 108 Ga. 640; Marsh v. Beraldi, 260 Mass. 225; American Sav. Life Ins. Co. v. Riplinger, 249 Ky. 8; Saums v. Parfet, 270 Mich. 165; People v. Levy, 283 App. Div. 383; State v. Landecker, 100 N. J. L. 195, 103 N. J. L. 716.)
   Van Voorhis, J.

Defendant-appellant is a professional photographer. He conceived it to be to his professional advantage to learn the names and home addresses of passengers debarking from ocean liners at New York City, in order that he might take and more easily market their photographs in pursuit of his profession. Lists of inbound passengers, known as passenger manifests, are required by Federal statute and regulation to be delivered by incoming vessels to the customs, immigration and public health authorities. These lists contain the street addresses of returning residents of this country throughout the United States. Apparently defendant wanted to be able to send proofs of photographs of passengers taken on arrival to the subjects at their homes, or, perhaps, to send glossy prints to their home newspapers. "Whatever the object may have been, defendant wanted to inspect the manifests. A United States Lines purser testified that he accepted $10 apiece from defendant for copies of these passenger manifests. In consequence, defendant has been convicted of violating section 439 of the Penal Law, making it a misdemeanor corruptly to influence agents, employees or servants of another. The material portions of this section read as follows: A person who gives, offers or promises to an agent, employee or servant of another, any gift or gratuity whatever, without the knowledge and consent of the principal, employer or master of such agent, employee or servant, with intent to influence such agent’s, employee’s or servant’s action in relation to his principal’s, employer’s or master’s business; or an agent, employee or servant who without the knowledge and consent of his principal, employer or master, requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to himself or to another, under an agreement or with an understanding that he shall act in any particular manner in relation to his principal’s, employer’s or master’s business, or receives a reward for having so acted; * * * is guilty of a misdemeanor ”.

In People v. Graf (261 App. Div. 188, 191-192) it was said: We think that1 particular manner, ’ as used in the statute, was intended to mean a particular manner which would serve the purpose of the donor of the money rather than that of the employer, and that the money was given and accepted with the intention to affect some decision by the employee involving exercise of discretion on his part with respect to Ms employer’s interest.” (Italics supplied.)

The latter statement appears to characterize the scope of the entire section. The question in this ease does not concern the ethics of paying gratuities, but relates to whether this defendant is guilty of the specific crime defined by this statute. In order to be guilty, these moneys must have been paid to the purser to influence his action concerning a matter affecting his employer’s interest. A common illustration of such a criminal act would be payment of money to a purchasing agent, to cause him to buy goods for his employer from one vendor rather than from another. Here, the interest of the United States Lines does not appear to have been involved. The testimony of the purser, on which defendant’s conviction hinges, is that the purser had notified his superior of the fact that this practice was being carried on, but that the superior “ gave me no answer and he didn’t say yes or no.” The reason on account of which no reply was given is evidently that the interest of the United States Lines was not regarded as being involved.

The record further indicates that the United States Lines did not confine the delivery of its passenger manifests to the Federal customs, immigration and public health authorities, but also caused them to be sent to certain newspapers. The manifests were thus given publicity by the direct order of the company. Although the record does not show that the purser was told to make them available to all newspapers, the circumstance that they were to be given publicity emphasizes that the purser’s act in making them available to defendant involved no exercise of discretion in the conduct of the business of this corporation. Submitting these documents to the customs, immigration and public health bureaus was part of the occupation of this steamship company, but it was not in the publishing business. Since money was not paid to influence the purser to perform an act involving discretion in the conduct of his employer’s business, defendant has not been proved to be guilty of the crime which is defined by section 439 of the Penal Law.

The judgments should be reversed and the information dismissed.

Conway, Ch. J., Froessel and Burke, JJ., concur with Van Voorhis, J.; Desmond and Fuld, JJ., dissent and vote to affirm; Dye, J., taking no part.

Judgments reversed, etc.


author: Desmond, J.

text:
    In the Matter of Charles W. Hughes, Respondent, against Board of Higher Education of the City of New York, Appellant.
    Argued October 13, 1955;
    decided November 23, 1955.

      Peter Campbell Brown, Corporation Counsel (Daniel T. Scannell, Seymour B. Quel and Helen R. Cassidy of counsel), for appellant.
    The Legislature, in enacting section 12-a of the Civil Service Law, gave legislative recognition to the fact that certain conduct constitutes disloyalty to the State, and guaranteed anyone accused of such conduct a trial, either administrative or judicial, but not both. (Matter of Fusco v. Moses, 304 N. Y. 424; Thompson v. Wallin, 301 N. Y. 476; Adler v. Board of Educ., 342 U. S. 485; Matter of Rabouine v. McNamara, 301 N. Y. 785; Matter of Board of Higher Educ. v. Cole, 236 App. Div. 777, 288 N. Y. 607; Matter of Levitch v. Board of Educ., 243 N. Y. 373; Matter of McDowell v. Board of Educ., 104 Misc. 564; Matter of Chapin v. Board of Educ., 291 N. Y. 241; Matter of Ross v. Wilson, 308 N. Y. 605; Matter of Board of Educ. of Central School Dist. No. 1 v. Allen, 283 App. Div. 376.)

      Osmond K. Fraenlcel for respondent.
    I. Petitioner was dismissed under section 12-a of the Civil Service Law. II. Petitioner has an absolute right to a hearing in court. (Ng Fung Ho v. White, 259 U. S. 276; United States v. Rumely, 345 U. S. 41; Peters v. Hobby, 349 U. S. 331; Thompson v. Wallin, 301 N. Y. 476; Adler v. Board of Educ., 342 U. S. 485; Matter of L’Hommedieu v. Board of Regents, 276 App. Div. 494.)
   Desmond, J.

Petitioner, an associate professor at Hunter College, which is maintained by the City of New York, was in 1954 (with other faculty members whose cases are not before us on this appeal) brought to trial before a trial committee of appellant Board of Higher Education of the City of New York. The charges, omitting one on which he was not found guilty, were two. The first charge was that petitioner, from 1938, had been a member of the Communist party which in proceedings taken pursuant to the “ Feinberg Law ” (Education Law, § 3022) and the Buies of the State Board of Regents had been listed in 1953 by the Board of Regents as a subversive organization within the meaning of section 12-a of the State Civil Service Law. The second charge against petitioner accused him of failing, by refusal to answer questions, to co-operate in an investigation by the Board of Higher Education into past or present membership of municipal college staff members in the Communist party or other subversive organizations. The board’s trial committee, after hearings at which testimony was taken and at which petitioner was represented by counsel, recommended that petitioner be found guilty on all three charges and dismissed. The board itself, after further hearings, found petitioner guilty on the two charges above summarized, and ordered his immediate dismissal from the college faculty.

To review his dismissal on the second, or non-co-operation charge, petitioner appealed to the State Commissioner of Education, pursuant to section 310 of the Education Law. As to his dismissal on the first, or Communist party membership charge, however, he brought the present proceeding to obtain a de nova trial in open court before the Supreme Court of this State. To such a trial, he asserts, he is entitled under subdivision (d) of section 12-a of the Civil Service Law. The sole question before us on this appeal is as to whether a public school or college teacher of this State, dismissed because of Communist party membership, has a right after dismissal to a court trial of the same charges. Conformably to Thompson v. Wallin (301 N. Y. 476) we answer that question in the affirmative.

The several statutes which must be read together to solve this problem have been so carefully described and analyzed in Thompson v. Wallin (supra) and in the United States Supreme Court’s affirmance thereof (Adler v. Board of Educ., 342 U. S. 485) that a much briefer statement thereof will suffice here. In 1917, section 3021 of the Education Law was enacted (as § 568) to authorize the removal of public school teachers for' treasonable or seditious acts or utterances. The 1939 legislative session produced section 12-a of the Civil Service' Law, applicable to all public employees including teachers and forbidding the appointment or continuance in service of any treasonable or seditious employee. It is on subdivision (d) of section 12-a that petitioner relies to support his demand here for a trial de nova. That subdivision reads thus: “ (d) A person dismissed or declared ineligible may within four months of such dismissal or declaration of ineligibility be entitled to petition for an order to show cause signed by a justice of the supreme court, why a hearing on such charges should not be had. Until the final judgment on said hearing is entered, the order to show cause shall stay the effect of any order of dismissal or ineligibility based on the provisions of this section. The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination. The burden of sustaining the validity of the order of dismissal or ineligibility by a fair preponderance of the credible evidence shall be upon the person making such dismissal or order of ineligibility.” 1949 brought the Feinberg Law ” (Education Law, § 3022, supra) which, obviously to implement the other two statutes we have discussed, set up a system whereby the State Board of Regents was required after hearings to list subversive organizations. Another part of the Feinberg Law directed the Board of Regents to adopt and 'enforce rules for the disqualification of teachers (and others) who violate section 3021 of the Education Law (supra) or who are ineligible under section 12-a of the Civil Service Law (supra). Membership in any listed subversive organization is made, by the Feinberg Law, prima facie evidence of disqualification for employment in the public school system.

Thus, section 12-a as well as section 3021 dealt with the removal of seditious teachers. Section 12-a forbade the employment or continuance in service of any public servant, including a teacher, who advocated the overthrow of our National Government by force. And section 12-a in the plain words above quoted from its subdivision (d) set up an open court hearing for “ A person dismissed or declared ineligible ” on such grounds. There is no escape from the conclusion that such a trial is available to a teacher so dismissed, and we so held in Thompson v. Wallin (301 N. Y. 476, supra). In our Thompson opinion (p. 494, supra), after analyzing all the administrative procedures provided by the several statutes to bring about a teacher’s dismissal, we continued thus: “ Should an order of ineligibility then issue, the party aggrieved thereby may avail himself of the provisions for review prescribed by the section of the statute last cited above ’ ’. The ‘ ‘ section of the statute last cited above ’ was 12-a (subd. [d]) of the Civil Service Law (supra) which provides an open court de nova trial after dismissal.

"When Thompson v. Wallin came to the United States Supreme Court (sub nom. Adler v. Board of Educ., 342 U. S. 485, supra), the majority opinion in that court quoted verbatim (p. 495) our Thompson opinion language above quoted. Thus; our construction of the de nova trial provision of section 12-a as applicable to Peinberg Law removals was accepted by the Supreme Court as being part of the protections provided by this State for teachers accused of communism. Indeed, the State Board of Regents in its brief filed with us had carefully pointed out that ‘ ‘ A teacher found disqualified pursuant to the Peinberg Law ” had “ an election of remedies ’ ’, consisting of “ several methods of appeal or review from which to choose ”. Then the brief listed three such remedies and one of them was that of a court trial under subdivision (d) of section 12-a. "When the case later went to the Supreme Court, the State’s brief (as amicus curiae) analyzing our opinion told the highest court that the construction of the statute by our court was binding on the Supreme Court, including our holding that the Peinberg Law afforded to any dismissed teacher a section 12-a (subd. [d]), court review. Indeed, the brief filed with us by the present respondent (Board of Higher Education) in a case heard with Thompson v. Wallin (supra) expresses no more than a doubt that the trial de nova procedure of section 12-a is available after Peinberg Law dismissals. The Special. Term holding in that associated case (Lederman v. Board of Educ., 196 Misc. 873; see pp. 882, 883) similarly expressed uncertainty as to whether subdivision (d) of section 12-a of the Civil Service Law could be used to review a teacher’s Feinberg Law dismissal. We removed that uncertainty in our Thompson v. Wallin opinion (supra).

The board’s arguments on this appeal boil down to this: that the Legislature, as to such a dismissal where other statutes mandate a full administrative hearing and allow an article 78 of the Civil Practice Act court review or, in the alternative, an appeal to the State Commissioner of Education, could not1” rationally have intended that, besides those choices, a dismissed teacher could choose to have a trial de nova in court. (But there are other situations where a trial de nova is a right; see Staten Is. Edison Corp. v. Maltbie, 296 N. Y. 374; Justice Ct. Act, § 442.) The only, but sufficient, answer is that subdivision (d) of section 12-a (supra) provides such a choice. It is cumbersome and unusual to allow such a second trial but the Legislature may have had its reasons for providing so extreme a measure of protection. The majority opinion in the Appellate Division suggests this as one such possible reason: that the Legislature realized that a Feinberg Law dismissal would, because of certain language in that statute, result in not only a teacher’s dismissal but in his permanent ineligibility for any public position in this State. We do not think it necessary or appropriate at this time to decide whether or not such a result follows such a dismissal. We do point out that, according to the very language of these charges and the discussions of them at the board’s hearings, the charge which petitioner wishes now to try in the courts was based on both section 12-a and the Feinberg Law. That necessarily brought into the picture subdivision (d) of section 12-a. It is no answer to this that the detailed procedures followed by the board were those described in subdivision 10 of section 6206 of the Education Law and in the board’s own by-laws. The board’s right to dismiss this teacher, as distinguished from pure procedure, was necessarily grounded on both the Feinberg Law and section 12-a of the Civil Service Law.

In the board’s brief in this court it is suggested, rather than argued, that the peculiar phraseology of subdivision (d) of section 12-a — “may * * * be entitled to petition-” the Supreme Court, etc.— means something less than an absolute right to go into the Supreme Court. We do not accept such a construction. It not only opposes the construction announced by us in Thompson v. Wallin (supra) but would make the subdivision useless if not meaningless.

The order appealed from should be affirmed, with costs, and the question certified answered in the negative.

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

Order affirmed, etc.


text:
    In the Matter of the Estate of Najeeb Kiamie, Deceased. Fareed Kiamie, as Executor of Najeeb Kiamie, Deceased, Appellant; Colonial Trust Company, Respondent.
    Argued October 17, 1955;
    decided November 23, 1955.

      Sidney A. Fine, Max Bosner and Arthur Karger for appellant.
    I. The alleged public sale of the collateral was invalid as a matter of law since the bank failed to comply with the common-law and statutory requirements for a public sale. (Cole v. Manufacturers Trust Co., 164 Misc. 741; Eppert v. Lowish, 91 Ind. App. 231; Laclede Nat. Bank v. Richardson, 156 Mo. 270; Dykers v. Allen, 7 Hill 497; Gandy v. Collins, 160 App. Div. 525, 214 N. Y. 293; Jones v. National Chautauqua Co. Bank, 272 App. Div. 521; Jacobs v. National Bank of Far Rockaway, 208 Misc. 923; Toplitz v. Bauer, 161 N. Y. 325.) II. The bank waived the provisions of the note authorizing it to sell the collateral without notice to the owner; and it was consequently powerless to sell the stock here involved without first giving ten days’ notice of the time and place of sale, as required by section 201 of the Lien Law. The one day’s notice of sale, given by the bank only to some of the parties entitled to notice, was inadequate as a matter of law. (Toplitz v. Bauer, 161 N. Y. 325; Gillet v. Bank of America, 160 N. Y. 549; General Phoenix Corp. v. Cabot, 300 N. Y. 87.) III. The waiver of notice of sale died with decedent, and any sale thereafter made without the notice required by law was invalid. (Francis v. Ferguson, 246 N. Y. 516.) IV. The bank did not acquire valid title to the securities in question by the sale purportedly held on November 15, 1933, in view of its failure to comply with section 104 of the Banking Law. (Tooker v. Inter-County Tit. Guar. & Mtge. Co., 295 N. Y. 386.) V. The Surrogate erred in refusing to compel respondent to produce the Leidesdorf report at the trial, as well as in rulings on the inspection and admissibility of various other records and documents. (Smith v. Rentz, 131 N. Y. 169; Carradine v. Hotchkiss, 120 N. Y. 608; Saal v. Katz, 81 Misc. 239; Matter of Kevill, 166 Misc. 230.)

      Harry Rodwin, Monroe Goldwater, Richard M. Goldwater and Bernard Kats for respondent.
    I. The pledged collateral was actually sold at public auction at the time and place specified in the notice of sale. II. The public sale of the collateral in question was valid and proper and in conformity with all necessary legal requirements. (Mount Vernon Trust Co. v. Bergoff, 272 N. Y. 192; Bay Parkway Nat. Bank v. Shalom, 270 N. Y. 172; President & Directors of Manhattan Co. v. Cocheo, 256 App. Div. 560; Amend v. Hurley, 293 N. Y. 587; Purvin v. Grey, 271 App. Div. 954; Toplitz v. Bauer, 161 N. Y. 325; Bailey v. American Deposit & Loan Co., 52 App. Div. 402, 165 N. Y. 672; Smith v. Craig, 211 N. Y. 456; Jacobs v. National Bank of Far Rockaway, 208 Misc. 923; Turner v. Metropolitan Trust Co., 207 F. 495; Bush v. Adams, 165 F. 802; Matter of Mertens, 144 F. 818.) III. The bank fully complied with all statutory and common-law requirements for a public sale. (Cole v. Manufacturers Trust Co., 164 Misc. 741; General Phoenix Corp. v. Cabot, 300 N. Y. 87.) IV. The waiver of notice of sale was effective regardless of the death of the maker. (Matter of Tabbagh, 167 Misc. 156.) V. The court below properly denied the request of appellant-petitioner for inspection of its exhibit K for identification. (Jones v. Nichols, 42 App. Div. 515; Shelton v. Holzwasser, 46 Misc. 76; Siegel v. Dubinsky, 56 Misc. 681; Mengis v. Fifth Ave. Ry. Co., 81 Hun 480.)
   Desmond, J.

While this is in form a Surrogate’s Court discovery proceeding, the dispute which it brings up for decision is as to whether or not respondent trust company converted corporate stock belonging to the estate of which appellant is exeoutor, and which stock had been held by the trust company as collateral security for a promissory note made by appellant’s testator. The underlying controversy is as to whether the pledgee’s purported public auction sale of those shares was valid.

The events took place many years ago but this proceeding was brought in time and there is no question of time limitations. Since the order below must be reversed on a single ground — inadequacy of the notice of sale — it will not be necessary to enlarge on the background facts. On September 21, 1933, the trust company took from Najeeb Kiamie a renewal note due October 23, 1933, for $26,000, representing the unpaid balance of much larger previous loans. At the time of that renewal Kiamie was sojourning in his native Syria but he had left with the trust company blank signed notes for purposes of renewing his loans. As collateral security for this September renewal, as for previous loans, there was lodged with the bank (besides some other property not here involved) all the shares of the capital stock of four corporations owned by decedent and his family. Those corporations had title to nine parcels of mortgaged real property in New York City. Before decedent had left for Syria in June, he had signed a previous $26,000 renewal note due in three months and had promised to pay $1,000 in reduction of principal at the maturity of that note. While decedent was abroad, his children who held a power of attorney from him had various conversations and negotiations with the trust company concerning the financial difficulties of the Kiamie corporations which included arrears in taxes and mortgage interest, and resulting threats of mortgage foreclosures. Without going into details, it may be said that those difficulties were serious and pressing. Early in September members of the Kiamie family told the trust company officers that the $1,000 promised for September by their father could not be paid. The trust company, on September 21,1933, accepted a further thirty-day renewal of the $26,000 note (using another blank, signed note left with the trust company by decedent) with a new promise by the Kiamies to pay $1,000 principal on maturity. Numerous further conferences were then held but without tangible results. On October 23, 1933, the September note (last in the series) went into default and no payment was made thereon. The affairs of the corporations went from bad to worse. Najeeb Kiamie, the father, died in Syria on November 7, 1933. On November 10th, after the Kiamie family had refused to give an assignment of rents to a mortgagee and after a foreclosure action had been commenced and receivers appointed as to some of the properties, the trust company notified the Kiamie family that the collateral would have to be sold. On November 13th, the trust company sent to the widow and three of the Kiamie children and to their attorney (two of these children and the attorney were the executors named in the father’s will) written notice that the stocks would be sold at public, auction at an auction house in New York City at 12:30 o’clock p.m. on November 15,1933. Notice of the sale was published in two New York City morning newspapers on November 14th and 15th and the collateralled stocks were listed in the printed catalogue of the auctioneer. No one representing the Kiamie family or their corporations appeared at the sale. The stocks were struck down (in one lot) to the trust company at its bid of $5,000, and it took title thereto in the name of its nominee.

The defaulted promissory note contained this language: ‘ ‘ Upon the non-payment of this note * * * the Trust Company shall have the right to sell, assign and deliver the whole or any part of the property hereinabove specifically described * * * at any time or times either at the New York Stock Exchange or at any other Exchange or at any broker’s board, or at public or private sale, either for cash or on credit or for future delivery, without demand, advertisement or notice, which are hereby waived * * *. Upon any sale as aforesaid, the Trust Company may purchase and hold the whole or any part of the property sold, free from any claim or right of redemption of the undersigned, which is hereby waived and released.”

We hold, as did the courts below, that the trust company had the right to sell the security and to bid at the sale. However, the published notice of sale, we hold, was so defective in its description of the property that the sale itself was entirely void. The auctioneer’s advertisement as published in the two newspapers announced the public auction sale at the auction rooms of a number of items in addition to the Kiamie stocks, As to the Kiamie stocks, the only references or descriptions were these:

“ 5 shs. Sherman Investing Corp. (N. Y.)
3 shs. Kiamie Holding Corp. (N. Y.)
3 shs. Haviland Holding Corp. (N. Y.)
100 shs. La Dana Holding Corp. (N. Y.) ”

No information whatever was given to the reading public as to what, if anything, those shares represented. There was no disclosure as to what kind of business, if any, the corporations conducted or as to what their assets or liabilities were, and no statement that the shares offered for sale were the whole outstanding capital stock of the corporations. If these had been listed or otherwise well-known stocks, the description might have furnished a sufficient clue (see Wheeler v. Newbould, 16 N. Y. 392, 397; Dykers v. Allen, 7 Hill 497). But all we had here were the meaningless names of four of the innumerable business corporations chartered in New York State (public records show that in the early 1930’s more than 20,000 business corporations were chartered annually in New York State, and at least 100,000 such domestic business corporations filed annual tax returns).

A pledgee’s duty adequately to advertise his sale is not imposed by any statute but by “ the general maxims of equity ” which govern pledges (Toplitz v. Bauer, 161 N. Y. 325, 332). Equity assigns to pledgor and pledgee a trust relationship with resulting obligations on the pledgee (Torrey v. Bank of Orleans, 9 Paige Ch. 649, 663; Toplitz v. Bauer, supra, p. 332; Jones v. National Chautauqua Bank, 272 App. Div. 521, 527; Colebrooke on Collateral Securities [2d ed.], § 87). One of those obligations (on mortgagee and pledgee) is to “ use every effort to sell the estate under every possible advantage of time, place, and publicity ” (Perry on Trusts and Trustees [4th ed.], § 602o; see Cole v. Manufacturers Trust Co., 164 Misc. 741, 747). The pledgee must do nothing to impair the pledge’s value (Toplitz v. Bauer, supra; Gillet v. Bank of America, 160 N. Y. 549, 560, and authorities cited). A notice of sale which does not identify the property sold cannot be a sufficient one (Perry on Trusts and Trustees [4th ed.], § 782; Newman v. Jackson, 25 U. S. 570), since the notice must be reasonable and customary (Gruman v. Smith, 81 N. Y. 25, 28; Small v. Housman, 208 N. Y. 115, 121). Obviously, the mere listing of a certain number of shares of an unknown corporation falls far short of compliance with these requirements. While we need not go so far as did the learned author of “ Drastic Pledge Agreements ” (Seasongood, 29 Harv. L. Rev. 277) who argued that such a notice of sale should disclose the owner’s name, the name of the pledgee and the amount due on the pledge, we find it impossible to announce detailed rules applicable to every such notice of sale. But the notice at the least must contain enough information to alert investors and to invite competition (Dykers v. Allen, supra, pp. 499-500; Eppert v. Lowish, 91 Ind. App. 231, 237, 238; Laclede Nat. Bank v. Richardson, 156 Mo. 270, 280, 282-283).

The power conferred on the pledgee by this note to sell at public or private sale and without advertisement or notice, leaves intact the law’s own requirement that every such sale be conducted in good faith (General Phoenix Corp. v. Cabot, 300 N. Y. 87, 94; Industrial & General Trust v. Tod, 180 N. Y. 215, 225, 226; Cole v. Manufacturers Trust Co., supra; Perry on Trusts and Trustees [4th ed.], § 602q; Restatement, Security, §49). While the pledgee under such an agreement as this may become the purchaser (Bryan v. Baldwin, 52 N. Y. 232, 235; General Phoenix Corp. v. Cabot, supra, p. 94), his exercise of that right makes it all the more necessary that the law’s insistence on ample notice be heeded. We need not add that our references to “ good faith ” carry no implication that the lender here was guilty of actual bad faith.

The Surrogate here held that the requirements of section 202 of the Lien Law (two successive weeks’ publication and sale not less than fifteen days after first publication) were not applicable to a sale of pledged property. He thought that under section 2 of that law this respondent was not such a “ lienor ” as is bound by the Lien Law. There are decisions to the contrary (Gandy v. Collins, 160 App. Div. 525, revd. on another ground 214 N. Y. 293; Jacobs v. National Bank of Far Rockaway, 208 Misc. 923; Jones v. National Chautauqua Bank, 272 App. Div. 521, 527, supra). We do not think the question arises on this record, since the borrower here plainly and effectively waived (see Fullerton v. Northern Bank of N. Y., 184 App. Div. 37, 43) any particular kind of “ advertisement or notice ”. The result was, as explained above, that there remained only the equitable obligations of good faith, which includes as to an auction sale appropriate notice by advertisement (see 72 C. J. S., Pledges, § 59, subd. a, par. [2]).

The order appealed from should be reversed, with costs in all courts, and the proceeding remitted to the Surrogate’s Court for further proceedings not inconsistent with this opinion.

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

Order reversed, etc.


text:
    Mary Cassidy, Respondent, v. Celia Cassidy, Appellant, et al., Defendant.
    Argued November 18, 1955;
    decided November 30, 1955.

      Charles G. Coster, John F. X. Finn and Carmelo J. Pernicone for appellant.
    I. There is no evidence of any confidential relationship existing between appellant and decedent. (Ten Eyck v. Whitbeck, 156 N. Y. 341.) II. Appellant fully complied with the direction of the Appellate Division to explain her part in the execution by decedent of his selection of beneficiaries. III. Decedent had never previously designated his wife as the beneficiary of his retirement benefits. IV. Fraud, undue influence and misrepresentation are not presumed — their existence, when alleged, must be affirmatively proved. (Smith v. Keller, 205 N. Y. 39; Matter of O’Brien, 115 Misc. 728; Matter of Ruef, 180 App. Div. 203, 223 N. Y. 582; Matter of Dowdle, 224 App. Div. 450, 256 N. Y. 629; Matter of Schillinger, 258 N. Y. 186; Matter of Kindberg, 207 N. Y. 220; Lynch v. Gibson, 254 App. Div. 47; Low v. State, 281 App. Div. 309; Shallow v. Carballal, 278 App. Div. 328, 303 N. Y. 623; Matter of Ford, 279 App. Div. 152, 304 N. Y. 598.)

      Myron Sulzberger, Jr., and Seymour S. Epstein for respondent.
    I. The disposition or benefit made by decedent to his sister of one half of all he owned when he was sick, weak and dying and had a wife, children and grandchildren is presumed void and fraudulent and it was incumbent on the sister to rebut this presumption by showing affirmatively by clear and convincing evidence that the disposition or benefit to her was free from deception, fraud and undue influence and was made openly, fairly and voluntarily. (Butler v. Prentiss, 158 N. Y. 49; Green v. Roworth, 113 N. Y. 462; Matter of Smith, 95 N. Y. 516; Katzman v. Ætna Life Ins. Co., 309 N. Y. 197.) II. The trial court’s comments concerning burden of proof did not constitute error. (Fisher v. Bishop, 108 N. Y. 25; Doheny v. Lacy, 168 N. Y. 213.) III. The trial court properly complied with the directions of the Appellate Division. (Katzman v. Ætna Life Ins. Co., 309 N. Y. 197.) IV. The findings of fact and the conclusions of the trial court are supported by sufficient evidence. (Boyd v. Boyd, 252 N. Y. 422; Amend v. Hurley, 293 N. Y. 587; Potts v. Pardee, 220 N. Y. 431; Rose v. Balfe, 223 N. Y. 481; Plumb v. Richmond Light & R. R. Co., 233 N. Y. 285; Chaika v. Vandenberg, 252 N. Y. 101; Banker v. Haynes Stellite Co., 135 Misc. 452.) V. To rebut the presumption of fraud and undue influence or unfairness in a situation involving a confidential or fiduciary relationship, it is the usual rule to require proof that a third and disinterested and competent party advised the donor of all his rights prior to making the distribution, and the execution of the forms in the decedent’s handwriting by itself will not 'overcome the presumption of fraud and undue influence.
   Per Curiam.

In 1923 John A. Cassidy, an employee of the City of New York, designated his wife as sole beneficiary of his retirement fund benefits. On May 15, 1951, he executed Option 1, pursuant to the provisions of the retirement system and made his wife and his sister cobeneficiaries. The defendant and a commissioner of deeds were the only persons present when the decedent executed his retirement papers. Decedent died on August 15, 1951.

The wife of decedent then brought this suit in equity against decedent’s sister seeking a judgment declaring defendant to be a constructive trustee for the plaintiff of upwards of $18,000, which represents one half of decedent’s retirement fund benefit. The wife’s complaint alleges fraud and undue influence in the execution of Option 1 in that it is claimed that the defendant falsely represented to decedent that it was designed to provide all the benefits for his wife; that decedent believed the representations and that he was in such a weak mental and physical state as to be unable to control his will and was prevailed upon by defendant to execute the option.

Defendant rested at the close of plaintiff’s case and the trial court dismissed on the merits. On appeal, the Appellate Division reversed and granted a new trial upon the theory that the sister “ owed an explanation ” to the plaintiff and the court (283 App. Div. 618, 620). On the second trial, Special Term found for the plaintiff holding that the sister not only had to explain the circumstances surrounding the transaction, but had to carry the burden of proof; that the sister gave no explanation and in the Court’s judgment, no persuasive explanation could have been given. ’ ’ The Appellate Division has affirmed.

The burden of proving the allegations necessary to warrant the imposition of a constructive trust was upon the plaintiff. Had the plaintiff demonstrated fraud and undue influence, prima facie, while the ultimate burden would not shift, the burden of going forward with evidence would have passed to the defendant. However, the plaintiff introduced no evidence to support her allegations of fraud or undue influence. Nor did plaintiff demonstrate, prima facie, that the relationship between the defendant and her brother was of a confidential nature so as to cast upon the defendant the burden of going forward with evidence to show that there had been no abuse of such relationship. Not only was the defendant required to show the facts and circumstances surrounding the execution of the option, as the Appellate Division had on the first appeal suggested, but Special Term ' incorrectly shifted the burden of proof from the plaintiff to defendant so as to. require the defendant to probe the mind of the decedent And explore the mental processes which led to and caused him tA-designate the cobeneficiaries whom he did. The judgment in, favor of plaintiff must be reversed and the complaint dismissed for the reason that plaintiff failed to make out a prima facie case for the relief sought by her.

The judgment of the Appellate Division and that of Special Term should be reversed, and the complaint dismissed, with costs in all courts.

Conway, Ch. J., Fuld, Froessel, Van Voorhis, Burke and Schmidt, JJ., concur.

Judgments reversed, etc.

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


author: Froessel, J.

text:
    In the Matter of Charles J. Gordon, Appellant, against George P. Monaghan, as Commissioner of the Police Department of the City of New York, Respondent.
    Argued October 10, 1955;
    decided December 1, 1955.

      George W. Hers for appellant.
    I. Appellant’s written application for a leave of absence without pay, pending the effective date of his retirement, was self-executing. Therefore, the commissioner had no discretion to deny the request. (Matter of Boulevard Theatre & Realty Co., 195 App. Div. 518, 231 N. Y. 615; Matter of Douglass, 46 N. Y. 42; Hardmann v. Bowen, 39 N. Y. 196; Escoe v. Zerbst, 295 U. S. 490; People v. Sutcliffe, 255 App. Div. 299; Matter of Pierne v. Valentine, 291 N. Y. 333.) II. If the request for a leavé of absence is not mandatory and self-executing, then Local Law No. 44 of 1951 of the City of New York violates section 10 of article I and the Fifth and Fourteenth Amendments of the Constitution of the "United States, and section 7 of article Y of the New York State Constitution. (People ex rel. Fitzpatrick v. Greene, 181 N. Y. 308; Gorman v. City of New York, 280 App. Div. 39; Roddy v. Valentine, 268 N. Y. 228; Matter of O’Brien v. New York State Teachers’ Retirement Bd., 215 App. Div. 220, 244 N. Y. 530.) III. The order of dismissal was arbitrary and capricious. The record is barren of any evidence that appellant was guilty of conduct . unbecoming an officer or of conduct prejudicial to good order and efficiency of the department or of violation of rules and regulations.

      Peter Campbell Brown, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for respondent.
    I. The provision of Local Law No. 44 of 1951 of the City of New York (Administrative Code, § B18-4.0), providing for the allowance of a thirty-day leave of absence at the “ request ” of a member of the police department when he files an application for retirement, does not in itself effect a leave of absence. When granted the leave of absence does nothing more than relieve the member from the performance of duty; it does not excuse him from the application of other rules of the police department. (Gorman v. City of New York, 280 App. Div. 39, 304 N. Y. 865; Matter of Pierne v. Valentine, 291 N. Y. 333; People ex rel. Davison v. Williams, 213 N. Y. 130; People ex rel. MacNish v. Waldo, 212 N. Y. 348.) II. Petitioner’s retirement application never became effective, since his term of employment had been forfeited because of absence for five days without leave prior to the date specified for his retirement in the application filed by him for that purpose. (People ex rel. Clifford v. Scannell, 74 App. Div. 406, 173 N. Y. 606; McAvoy v. Press Pub. Co., 114 App. Div. 540; Majewski v. Farley, 203 App. Div. 77; People ex rel. Donovan v. Board of Fire Comrs. of City of N. Y., 77 N. Y. 153; People ex rel. Fahy v. York, 49 App. Div. 173, 163 N. Y. 551; People ex rel. Grogan v. York, 51 App. Div. 502; Matter of Nelson v. Partridge, 78 App. Div. 645; Schieffelin v. Enright, 200 App. Div. 312.) III. Petitioner’s “ request ” for a leave of absence was not self-executing, since the provision in Local Law No. 44 of 1951 of the City of New York that the member “ shall be granted ” a leave of absence contemplated action by the police commissioner before the leave of absence could become effective. (Matter of Evans v. Monaghan, 306 N. Y. 312; People ex rel. MacNish v. Waldo, 212 N. Y. 348; Matter of Breen v. New York Fire Dept. Pension Fund, 299 N. Y. 8; Matter of Dr. Bloom Dentist, Inc., v. Cruise, 259 N. Y. 358.) IV. There was substantial evidence in support of the charges against petitioner of misconduct as a member of the police department.
   Froessel, J.

On April 22,1952, petitioner, a police lieutenant with nearly twenty-seven years of active service, filed a written application for retirement from the New York City Police Force effective May 22,1952. Accompanying it was a written application for thirty days’ leave of absence without pay, effective 12:01 a.m. the next day, April 23d, and terminating at the time his retirement would take effect. At the same time, he surrendered his badge and revolver. He had, during his period of active service, contributed regularly to the Police Pension Fund, and, as of the date of filing said applications, there were no charges pending against him.

The following day, April 23d, petitioner departed from the city. He left no forwarding address, there being no regulation then in effect which would require him to do so, although such a regulation was enacted ten days after he had left. Immediately prior to the filing of said applications, petitioner had been on sick leave and did not ‘ ‘ report off sick report ’ ’ or communicate with the police surgeon, although regulations provided that members of the force on sick report “ shall not leave their residence or place of confinement except by permission of the district surgeon ”.

Petitioner’s commanding officer and inspector both approved his application for leave of absence without pay on April 23, 1952, as did the assistant chief inspector on April 24th. However, on April 25th, the acting chief inspector and the police commissioner disapproved petitioner’s application. On May 12, 1952, charges were filed by the police surgeon with the police commissioner, alleging the following violations against petitioner:

1. Absence from his residence without permission of the police surgeon from April 24 to May 3,1952.

2. Failure to report to the grand jury “ as directed ” and as ordered ” on April 22, 24 and 29, 1952.

3. Failure to report before a special assistant attorney-general as ‘ ‘ directed ’ ’ on April 28 and through May 5, 1952.

4. Failure to appear at the office of the chief surgeon of the police department as directed ” from April 28 through May 5, 1952.

5. Absence without official leave for more than five consecutive days from April 22d to May 12th, the date charges were filed.

With the exception of those allegations concerning petitioner’s alleged failure to report to the grand jury on April 22d (paragraph 2 above), and his absence without official leave on the same day (paragraph 5 above) — on the first of which petitioner was ultimately found not guilty, and on the second of which no proof was ever offered and of which no further mention was made at the hearing — all the above purported violations are alleged to have occurred after petitioner filed his applications for retirement and leave, and after the effective date of said leave of absence.

Petitioner, while absent from New York City, was served with a notice of hearing with respect to these charges by the same method which had been employed to “ direct ” and <£ order ” him to appear before the police surgeon, the assistant attorney-general and the grand jury just prior to, and resulting in, the filing of charges against him — by a form of substituted service provided by police regulations, specifically by the posting of such notices upon a bulletin board at the precinct to which he was assigned and by leaving copies thereof at his residence. Petitioner did not appear at the hearing held on May 16, 1952.

At that hearing, testimony was introduced to show that petitioner had been absent from his residence since April 23, 1952, one day after filing his applications for retirement and for leave. Although orders dated subsequent to April 22, 1952, were shown to have been issued, as aforesaid, directing petitioner to appear at the times and places mentioned in the charges above, there was no showing that petitioner received actual notice or personal service of any of the orders, directives or subpoenas. The sum of the evidence against petitioner was his departure after filing written applications for retirement and leave and his continued absence during the period of the leave specified in his application therefor.

Petitioner was found guilty of the above infractions (with the exception noted above), and upon the recommendation of the hearing commissioner was dismissed from the force on May 19, 1952 — thereby losing his accrued rights to a life pension of one half the annual salary he was receiving when retired, or about $2,850 per year.

The question presented on this appeal is simply whether petitioner, under the laws, rules and regulations then in effect, had any obligation to remain available to, and in contact with, the police department after the time his filed application for terminal leave of absence was to take effect by its own terms. In short, was there any duty thereafter which he, on this record, could be found to have breached?

Petitioner has contended that, having completed his more than twenty-five years of service in the department, he had an absolute right to file for retirement; that under Local Law No. 44 of 1951 of the City of New York (Administrative Code of City of New York, § B18-4.0, as amd.), he was entitled to be retired after the passage of thirty days from April 22,1952, the time of his application, there being no charges pending or filed against him on that date, and no subsequent charges relating to his conduct on or prior to that date, said law declaring, in relevant parts:

1 ‘ Any member who * * * 2. Shall have elected to contribute on the basis of retirement after twenty-five years of service and who has * * * performed service in the force for at least twenty-five years, upon Ms own application in writing to and filed with the board setting forth at what time, not less than thirty days subsequent to the execution and filing thereof, he desires to he retired, shall he retired as of the date specified in said application * * * and awarded * * * an annual pension * * * provided further that at the time so specified for his retirement his term or tenure of office or employment shall not have terminated or have been forfeited ” (emphasis supplied); that further, and of central importance here, by the same statute — which continues: “provided further that upon Ms request in writing the member shall he granted a leave of absence from the date of filing said application until the date the retirement becomes effective ” (emphasis supplied) —petitioner’s simultaneous application for leave of absence mandated the commissioner to grant said leave application; and that after the effective date in the leave application, he was automatically and instantly relieved of police duty and no longer subject to the ordinary commands of the department. He urges, therefore, that he could not be legally guilty of breach of any duty by failing to comply with subsequent orders relating to matters occurring after such effective date to which orders he was no longer subject.

At the outset, this case should be distinguished from that of a retiring police officer who, after filing his applications, refuses to co-operate in the investigation of charges filed against him or relating to his conduct prior to the date of his application. It is not the case of one who refuses to respond to a properly served subpoena to appear before a grand jury; nor is this a matter of petitioner’s claiming to be immediately excused from duty to the police force as a result of the mere application for retirement itself (once possible; see Matter of Pierne v. Valentine, 291 N. Y. 333, but now obviated by the thirty-day waiting period enacted in the 1951 amendment to the aforesaid statute). Bather we are here confronted with a police officer’s claim to have been excused by reason of his application for thirty days’ leave without pay at a time when no charges were pending against him and no police regulation required him to leave a forwarding address.

By virtue of the holding below (1) petitioner’s application for leave has been held to be not self-operating and its approval not mandatory, and (2) his absence, in apparent reliance on the automatic operation of that application, and his consequent failure to respond to the substituted service of police orders, have been made the basis for a finding of breach of duty which has cost petitioner his pension benefits and has brought about his dismissal from service on the threshold of his retirement. Such a result is contrary to law and particularly to the clear language of the pertinent statute itself.

Pension rights are “ in the nature of compensation for the services previously rendered for which full and adequate compensation was not received at the time of the rendition of such services ” (Matter of Giannettino v. McGoldrick, 295 N. Y. 208, 212), and, as such, ought not to be witheld without legal cause from those with deserving records of service. For this very reason the immediate leave of absence provision was made part of the foregoing 1951 Administrative Code provision. The minutes of the public hearings held thereon make it abundantly clear that it was enacted to protect retiring policemen from the unwarranted filing’ of infractions at the last moment for the purpose of cutting off their pension rights. It therefore follows that, during such terminal leave time, retiring policemen may ask for and be entitled to a suspension of police duties and responsibilities, for if the duties of such retiring members remain undiminished, such protection as was expressly written into the law would, in practical operation, afford no protection at all.

Here, then, there could be no survival or extension of such requirements as that petitioner report off sick leave or remain at home, or that he check with headquarters regularly during his leave to see if he was being sought for any reason. Such requirements are by their nature reasonably related only to the performance of active duty. If petitioner’s service record was clear when he filed his application, and called for no hearings on any charges then pending or related to his conduct prior thereto, and if he was on leave preparatory to retirement, he was freed of obligation to report as aforesaid. Of course, like any other private person, he was at all times subject to a properly served subpoena or summons by any duly constituted tribunal, as a court, a grand jury or the like.

We hold that petitioner was on leave from the instant specified in his application, irrespective of the fact that the commissioner, after three of petitioner’s superiors had approved said application, finally disapproved the same. The language “ shall be granted ” in the afore-mentioned statute is clearly mandatory, and where, as here, petitioner’s record was as of that moment bare of charges relating to misconduct prior to his application for retirement and leave, there was no discretion to be exercised in the granting of leave (see Matter of Pierne v. Valentine, supra, pp. 343-344; Matter of Douglass, 46 N. Y. 42; Matter of Boulevard Theatre & Realty Co., 231 N. Y. 615).

We recognize that the police department may not be deprived of the benefits of the statutory thirty-day notice and waiting period before retirements actually may take effect, i.e., of the opportunity to investigate applicants for retirement and to determine whether up to the time when their terminal leaves of absence take effect they had performed their services faithfully and in a manner entitling them to pension benefits. But, by the express design of the Legislature, after considering the real necessity for some form of protective legislation, those infractions into which said department may inquire have been limited to those which are alleged or believed to have occurred prior to the filing of applications for immediate terminal leaves of absence.

Thus the granting of leave here was mandatory, and petitioner was, in • effect and without further action on the part of the commissioner, on a leave of absence as of midnight, April 22d, and was thereafter no longer subject to general administrative regulations or rules reasonably related only to the active performance of duty. Moreover, while he was subject to the service of subpoenas for any grand jury or other lawful investigations of misconduct alleged to have taken place prior to or during the time of his leave, he was not, according to the then existing rules, under any duty to leave word as to his whereabouts — a shortcoming corrected by the forwarding address regulation not adopted until ten days after petitioner departed — and could not lose his pension for failing to leave such word, nor for failing to respond to orders or directions given during such leave by a form of substituted service which the regulations provide in case of the service of charges and specifications.

In sum, petitioner’s active service career terminated at midnight of April 22d, a time when his record was clear of charges affecting his right to a retirement pension. All such subsequent charges filed which allege infractions of duty during a period when such active service had terminated erroneously presupposed the existence of active duties. Without duty there could be no breach of duty, and without breach of duty petitioner’s dismissal may not stand.

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

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

Order reversed, etc.