author: Fuld, J. Desmond, J.

text:
    Fred Warner, Appellant, v. State of New York, Respondent.
    (Claim No. 27846)
    Argued October 9, 1947; reargued March 18, 1948;
    decided April 22, 1948.

      Joe Schapiro for appellant.
    I. Claimant’s admission and detention were illegal, deprived claimant of his liberty and were in violation of Ms personal rights. (Rizzo v. Riddell, 262 App. Div. 779; MacDonnell v. McConville, 148 App. Div. 49, 210 N. Y. 529; Thomas v. First Nat. Bank of Lisbon, 263 App. Div. 476; Mandeville v. Guernsey, 51 Barb. 99, 50 N. Y. 669; People v. Hoch, 150 N. Y. 291; Matter of Clarkson, 186 App. Div. 575, 227 N. Y. 599; Hoff v. State, 279 N. Y. 490.) II. Claimant is entitled to damages. (People v. Weiss, 276 N. Y. 384; Vernes v. Phillips, 266 N. Y. 298; Grago v. Vassello, 173 Misc. 736; Rizzo v. Riddell, 262 App. Div. 779; Fischer v. Langhein, 103 N. Y. 84; Tierney v. State of New York, 266 App. Div. 434, 292 N. Y. 523; Shattuck v. State of New York, 166 Misc. 271, 254 App. Div. 271; Clark v. Nannery, 292 N. Y. 105.)

      Nathaniel L. Goldstein, Attorney General (John R. Davison, Wendell P. Brown and Ronald E. Coleman of counsel), for respondent.
    I. Claimant was legally admitted and confined in the Marcy State Hospital as an insane patient suffering from a paranoid condition. (Emmerich v. Thorley, 35 App. Div. 452; People ex rel. Benson v. Burdick, 215 App. Div. 163; People v. Braun, 158 N. Y. 558; People ex rel. Edwards v. Superintendent, 235 N. Y. 398; People ex rel. Peabody v. Chanler, 133 App. Div. 159, 196 N. Y. 525; Collins v. Loisel, 262 U. S. 426; Christiansen v. Weston, 36 Ariz. 200; Hanna v. Stedman, 230 N. Y. 326; Niehoff-Schultze Grocer Co. v. Gross, 205 App. Div. 67; Joannes

      Bros. Co. v. Czarnikow-Rionda Co., 121 Misc. 474; Maxwell v. Maxwell, 189 Iowa 7; Colby v. Jackson, 12 N. H. 529.) II. It was the duty of the officers directing Marcy State Hospital to bring claimant to that institution and to detain him there. (Mudge v. State of New York, 271 App. Div. 1039; Douglas v. State of New York, 296 N. Y. 530; Emmerich v. Thorley, 35 App. Div. 452.) III. In any event claimant’s detention in the Marcy State Hospital, subsequent to the order of commitment of July 5, 1944, was lawful and insofar as the award made by the Court of Claims included compensation for damages sustained by him during such period, it was excessive. (People v. Braun, 158 N. Y. 558; People ex rel. Edwards v. Superintendent, 235 N. Y. 398; People ex rel. Peabody v. Chanler, 133 App. Div. 159, 196 N. Y. 525.) IV. Claimant, having been properly admitted and detained in the Marcy State Hospital, failed to prove any cause of action for damages for the injuries allegedly sustained in the course of the shock treatments given to him. V. The urgency and necessity for -claimant’s summary restraint and detention have been shown. But, if the proof is still deemed inadequate this is due to the trial court’s error in the exclusion of testimony and the State should be afforded an opportunity to adduce further proof in respect thereto. (Davis v. Merrill, 47 N. H. 208; Van Deusen v. Newcomer, 40 Mich. 90; Emmerich v. Thorley, 35 App. Div. 452; Look v. Dean, 108 Mass. 116; Keleher v. Putnam, 60 N. H. 30; Maxwell v. Maxwell, 189 Iowa 7; Crawford v. Brown, 321 Ill. 305; Colby v. Jackson, 12 N. H. 526; People ex rel. Benson v. Burdick, 215 App. Div. 163; People ex rel. Edwards v. Superintendent, 235 N. Y. 398; People ex rel. Peabody v. Chanler, 133 App. Div. 159; People v. Braun, 158 N. Y. 558.) VI. The common-law privilege of summary arrest and detention has survived enactment of the Mental Hygiene Law. (Sporza v. German Sav. Bank, 192 N. Y. 9; Keleher v. Putnam, 60 N. H. 30; Emmerich v. Thorley, 35 App. Div. 452; Sutherland on Statutory Construction [3d ed.], Vol. 3, § 5305, p. 14.)
   Fuld, J.

Fred Warner was a fairly successful farmer owning and operating a farm in Madison County, New York. He was married in 1924, and continued to live with his wife and one child until 1944, when the events which gave rise to this action occurred. His marital life had been increasingly disturbed by domestic troubles between himself on one side and his wife and mother-in-law on the other.

On June 18,1£)44, the wife called upon the town health officer — who happened to be the family physician — and complained about claimant’s behavior and mental condition. She described her husband as a man of peculiar traits and eccentricities ranging from argumentativeness and irritability to delusions that her hands “ were poison ” and that it was necessary to lock the doors against thieves.

Without either seeing or examining claimant, the health officer telephoned the Marcy State Hospital, a State institution for the mentally ill, and forwarded to it a certificate requesting claimant’s admission. Three days later, on June 21, claimant was interrupted at his work by a State trooper and three employees of the hospital. They took him, against his will, though without violence, to the institution in an ambulance. Upon arrival, he was given a cursory physical examination and admitted — as appears from a hospital record then made and entitled “ Admission Note ” — “ on an H. 0. [Health Officer’s] Certification.” I merely note at this point that that certificate was concededly defective since it appeared on its face that the health officer had not, as section 72 of the Mental Hygiene Law required, personally examined the subject. Claimant, though he frequently demanded his release, remained in the hospital for two months. While there he was given, over his objection, several electric shock treatments which produced convulsions, broke his arm and injured his back.

On July 5, two weeks after claimant’s admission in the manner related, a court order was signed, upon petition of the ■wife, directing his commitment to the institution. There is no doubt that, that order was in form valid and proper, having been obtained in accordance with section 74 of the Mental Hygiene Law. During claimant’s -confinement, his sister initiated a proceeding, pursuant to section 76 of that law, to review the July court order, and on August 21, after a trial, a jury found him sane and the court entered an order so adjudging him and directing his release. The State and hospital authorities took no appeal — although privileged so to do (People ex rel. Benson v. Burdick, 215 App. Div. 163, 165) — and claimant returned to his home, to live and work there as he had before.

Some time after his release, claimant brought this action for false imprisonment, asserting that both the original arrest and the detention for the entire period between June 21 and August 21 were unlawful. The Court of Claims awarded some $6,000 in damages, including sums for personal injuries and loss of crops and livestock. Both State and claimant appealed; the latter contending that the damages awarded were inadequate, the State, that no cause of action was established. The Appellate Division, adopting the State’s view, reversed and dismissed the claim.

We do not agree entirely with the determination made in either court. In our view-, there was no warrant or justification for the original arrest or for the restraint up to July 5 — and the claimant is entitled to damages therefor — but the court order of July 5, being valid, authorized claimant’s subsequent confinement and protected the State from any further liability for false imprisonment after that date. (See Douglas v. State of New York, 296 N. Y. 530, affg. 269 App. Div. 521; Clark v. Nannery, 292 N. Y. 105, 108; Hendrix v. Manhattan Beach Development Co., 181 App. Div. 111, 117; see, also, Restatement, Torts, § 122.) Claimant’s contention, that, if the initial restraint was wrongful, the hospital was under the necessity of first releasing and then rearresting him if it chose to rely upon the court order, is without merit. (See Clark v. Nannery, supra, p. 108; Hendrix v. Manhattan Beach Development Co., supra, p. 117; Gearity v. Strasbourger, 133 App. Div. 701, 704.)

The detention prior to July 5 must, however, stand upon a different footing; if without basis, the later court order will not absolve the State from liability already incurred (see Clark v. Nannery, supra, p. 108; Hendrix v. Manhattan Beach Development Co., supra, p. 117 ; Ingo v. Koch, 127 F. 2d 667, 671), and, accordingly, we turn to a consideration of that original restraint.

It is settled that one who arrests or restrains another may be liable for pursuing illegal or improper procedure as well as for acting upon an insufficient or improper basis. (See Snead v. Bonnoil, 166 N. Y. 325. 328; MacDonnell v. McConville, 148 App. Div. 49, 53, affd. 210 N. Y. 529; Rutherford v. Holmes, 66 N. Y. 368, 372; Ingo v. Koch, supra, p. 671; Look v. Choate, 108 Mass. 121, 122-123.) With that in mind, we examine the facts before the hospital officials on June 21 when claimant was first taken into custody to ascertain whether they — and through them the State — were justified in adopting the procedure they did to effect claimant’s detention. We seek in vain a rule of common law or a provision of statute for such justification.

The common law recognized the power to restrain, summarily and without court process, an insane person who was dangerous at the moment. The power was to be exercised, however, only when 11 necessary to prevent the party from doing some immediate injury either to himself or others ” (Anderdon v. Burrows, 4 Car. & P. 210, 213, 172 Eng. Rep. 674, 675) and “ only when the urgency of the case demands immediate intervention.” (Keleher v. Putnam, 60 N. H. 30, 31; see, also, Scott v. Wakem, 3 Fost. & Fin. 328, 334, 176 Eng. Rep. 147, 149; Look v. Dean, 108 Mass. 116, 120 et seq.; Witte v. Haben, 131 Minn. 71, 74; Colby v. Jackson, 12 N. H. 526, 530-531; 9 Bac. Abr. [1876], Trespass, p. 469; Buswell, Law of Insanity [1885], § 23; Note, 56 Yale L. J. 1178, 1185.) On the other hand, insane persons who were not dangerous were not liable to be thus arrested or restrained' ”. (Look v. Dean, supra, p. 120.) And upon one who did the restraining rested the burden of showing, in order to justify it, the urgency and necessity for the immediate restraint. (See Scott v. Wakem, supra; Emmerich v. Thorley, 35 App. Div. 452, 456; Crawford v. Brown, 321 Ill. 305, 316-318; Maxwell v. Maxwell, 189 Iowa 7, 13; Boesch v. Kick, 97 N. J. L. 92, 96-97.) Emmerich v. Thorley (supra) — relied upon by Judge Desmohd in his dissenting opinion — is a striking illustration of the sort of case wherein summary restraint is justifiable. There, the plaintiff who had been summarily and forcibly restrained was actually in the act of throwing herself' out of a window to escape fancied pursuers — and, as the court there noted, it was only by the exertion of force by Mr. Thorley that she was overcome, and she was not quieted until her strength was exhausted ” (35 App. Div., at p. 454).

The State has enacted legislation dealing with the admission procedures to be followed in committing and confining the mentally ill (Mental Hygiene Law, art. 5), but that did not affect the existence of the common-law privilege of summary arrest and detention. The statute did not abolish or curtail the power in a proper case; nor did it, by the same token, enlarge the area, of its exercise. As before, only where immediate and precipitate action is demanded to prevent present and imminent harm, may the power be exercised. In lesser emergencies, the statute points the swift and expeditious admission procedures to which resort must be had. It is by one of those methods that any party — State or individual — must move where something less than present and imminent danger threatens. In section 75 of the Mental Hygiene Law, for instance, provision is actually made for the commitment of a person so dangerous ” that it is necessary for public safety that he be immediately confined ”. Only in emergencies beyond those words may the summary common-law power be utilized. The facts in the case before us portended no such emergency.

Perhaps to one trained in psychiatry, the facts developed at the trial might indicate that Warner suffered from a paranoid condition. That, however, is not the issue. The question is whether he was shown to be so dangerous at the time of his admission that resort to the extraordinary measure of summary restraint was necessary for his own and the public’s safety. We believe it very clear that there was no such showing. It is undisputed that Warner had committed no overt act forecasting danger to himself or others, either before he was arrested, at the time of his arrest and admission, or during the period that he was confined. While a paranoid condition may sometimes erupt suddenly in some dangerous act, it may, on the other hand, slumber indefinitely; one who suffers from it may conduct himself for years, throughout life even, peaceably and quietly, with no symptom other than a belief that he is being persecuted. (See White, Outline of Psychiatry [14th ed.], p. 150; Orgel, Psychiatry Today and Tomorrow [1946], pp. 308-309.) There is a great difference between a case such as that — where the condition merely may, at some future time, flare up — and one wherein there is imminent and immediate danger of harm unless the patient is summarily restrained. Neither the health officer who requested Warner’s admission nor the hospital authorities who took him in charge treated him as one who was so dangerous that he had to be summarily arrested: resort was had to a statutory admission procedure — section 72 of the Mental Hygiene Law — and the officials moved at a leisurely and unconcerned pace, the hospital actually letting several days elapse before sending for him and arresting him.

Necessity for summary arrest under the common-law rule not being shown, the State must find authority in some provision of statute; it points to sections 72 and 81 of the Mental Hygiene Law.

When claimant arrived at the hospital, he was admitted, as already noted, “ on an H. 0. [Health Officer’s] Certification.” While admission on such a certificate is sanctioned by section 72, the certificate here used and relied upon was defective, as even hurried perusal of it would have revealed. Since the request of the health officer had not been, as the statute demanded, based upon a personal examination ”, that official was in no position to certify that the subject was “ in need of immediate care and treatment in an institution ” because of mental derangement. Indeed, the certificate contained no statement of fact indicating that claimant had committed any act of violence or that he was then in need of such immediate care or treatment. That being so, the certificate, as the hospital must have appreciated, furnished neither authority nor power to detain claimant. This is not a case of a document which, though erroneously made, is valid on its face — in which instance, the State and its agents would be protected. (See, e.g., Douglas v. State of New York, supra; Emmerich v. Thorley, supra, p. 458; see, also, Restatement, Torts, § 122.) In .the present case, the invalidity of, the deficiency in, the certificate were patent to all who read it; the hospital was not warranted in acting upon it.

Nor may the State justify the confinement under section 81 — assuming that it may now assert the protection of some statutory provision which its agents did not have in mind when they acted. The admission procedure there outlined applies only to “ a psychopathic hospital, or a psychopathic ward in a general hospital, for the temporary observation, examination, care and certification of mentally ill, mentally defective, or epileptic persons ” (§81, subd. 2; see, also, § 81, subds. 3, 4), and not to a state hospital” such as Marcy State Hospital (§ 60) — and, indeed, upon the reargument herein the Attorney-General frankly acknowledged the inapplicability of section 81.

Where personal freedom is at stake, insistence upon strict and literal compliance with statutory provisions is not only reasonable but essential. The State has a legitimate and vital interest in protecting its citizens from harm at the hands of potentially dangerous mental cases, but that is not the only interest to be served. The liberty of an individual, not yet adjudged insane, is too precious to allow it to be invaded in any fashion, by any procedure, other than that explicitly prescribed by law. Particularly is that true here, where the statute’s demands are easily met and satisfied. Undoubtedly mindful of both the welfare of the patient and the necessities of emergency situations, the Legislature has provided a simple and swift admission procedure, especially for subjects who are ‘ ‘ dangerous ” or in need of ‘1 immediate care and treatment ’ ’ (see, e. g., Mental Hygiene Law, §§ 72, 75, 81).

Agents of the State, as well as private citizens, are bound to observe the requirements of the law before an individual may justifiably be held in a mental institution and subjected to its impact and stigma; failure to do so renders the State liable for the wrong (Court of Claims Act, § 8).

It is our conclusion, then, that claimant established a cause of action by showing that he was forcibly taken into custody and whisked off to the hospital, and that his illegal restraint and confinement continued until his commitment received court sanction by the order of July 5. In the view thus taken, the testimony proffered by the hospital doctor, who examined claimant upon his arrival, as to whether claimant was a subject for mental treatment ” while at Marcy, could not affect the result of the case. It may, however, have some bearing on the amount of damages to be awarded (see Tweed v. Western Union Tel. Co., 107 Tex. 247, 252; cf. Scolavino v. State of New York, 297 N. Y. 460, affg. 271 App. Div. 618; Grasso v. State of New York, 289 N. Y. 552; Gallachicco v. State of New York, 43 N. Y. S. 2d 439, 442) and, accordingly, upon the new trial to be had, such evidence should be admitted for that purpose. (See Haughey v. Belmont Quadrangle Drilling Corp., 286 N. Y. 584; cf. Verstandig v. Schlaffer, 296 N. Y. 997, amdg. remittitur in case 296 N. Y. 62.)

The judgment of the Appellate Division should be reversed and that of the Court of Claims modified by granting a new trial solely upon the question of damages, and, as so modified, affirmed, with costs to appellant in all courts.

Desmond, J.

(dissenting). On June 21, 1944, plaintiff was taken, against his will, by employees of Marcy State Hospital, to that hospital, and there confined. The purported authority for that taking and detention was a written request by a local health officer drawn up in an effort to comply with section 72 of the Mental Hygiene Law. That written request was not, however, “ based upon a personal examination ” by the local health officer, nor did it state that such examination had been had. The paper, therefore, was not such as is described in section 72 and so was in itself of little or no legal effect as a justification for the detention of plaintiff. However, the document did contain, over the health officer’s signature, a statement of that physician’s opinion that claimant was “ in need of immediate care and treatment in an institution for the treatment of mental disease ”. It went on to state the reasons for that opinion, consisting of quotations from a statement by claimant’s wife, which the health officer said he believed to be true. The wife’s statement described conduct of a generally paranoiac nature. The senior physician of the State Hospital testified at the trial that he examined claimant on admission, but that physician was not permitted to testify as to what that examination consisted of or as to whether he (the physician) was of the opinion that claimant needed medical treatment. That physician did testify at the trial that he recommended electric-shock treatments for claimant because, in the witness ’ opinion, claimant was suffering from a mental disorder “ featured essentially by paranoid reactions.” A week after claimant’s admission to the hospital, and again a few days later, there were written into the hospital records long statements by hospital attaches, of claimant’s condition, containing data suggestive of paranoia. Those writings, also, were excluded from evidence. On July 5, 1944, after claimant had been in the hospital for two weeks, two qualified medical examiners, not connected with the State hospital, swore to a certificate in the form required by section 74 of the Mental Hygiene Law, for a court commitment, and the commitment of claimant was ordered by a County Judge. That order was based in part -on the written opinion of these two examiners that claimant was “ mentally sick and a proper subject for custody and treatment in some institution for mental disease ” and in part on the petition of claimant’s wife, which petition contained the same information found in the local health officer’s report, hereinabove referred, to. The County Judge’s order contained an express adjudication that claimant was insane ” and it is clear that the order was adequate authority for the restraint of claimant thereafter. However, we are told that the State is absolutely liable for such damage as claimant suffered on June 21st and between that date and July 5, 1944. This result can follow only from a holding that, despite the information furnished to the Marcy officials on June 21st, and despite their own examinations and opinions, the removal of claimant from his home to Marcy and his detention at Marcy from June 21st to July 5th was a trespass, without any legal justification or excuse, leaving open to question only the amount of his damage. In turn, such a holding must result from a theory of law that the State and its agents have absolutely no power to seize or hold mentally sick persons except upon exact and literal compliance with statutory forms, or that the State and its agents can so hold or seize such a person, without following those exact statutory procedures, only if the person is raving-mad. To hold the State absolutely liable here for the June 21st to July 5th period, we must go even further and decide for ourselves that there was no danger or urgency at all, in this claimant’s condition, on June 21, 1944. Such a version of the law goes very far, indeed.

Article 5 of the Mental Hygiene Law describes in detail the appropriate procedures for admitting persons to hospitals for the mentally ill. Nowhere in that article does there appear any statement or indication that these procedures are absolutely exclusive, or that the common-law powers of the State (and of private persons) to take custody of the insane, have been totally withdrawn by the Legislature. This State has had lunacy laws ” of one sort or another for decades. Some of them had been in effect for many years when Emmerich v. Thorley (35 App. Div. 452) was decided. That well-considered and authoritative case holds, with a wealth of citation from England, and from various United States jurisdictions, that private persons without judicial or other public authorization may restrain mentally sick persons who are dangerous to themselves or others. There is no reason for concluding that such is no longer the law even as to private persons, and the persons who arrested and detained this claimant were not private persons at all, but agents of the State, the duty of which, as parens patrie of persons of unsound mind, is to protect them, and the community from them (Sporza v. German Sav. Bank, 192 N. Y. 8).

Emmerich v. Thorley (supra) and similar cases hold that while a private person may summarily detain without a warrant one who is dangerously insane, that person, acting without process, does so at his peril and is liable in damages unless the restraint is “ necessary In the present case, the Appellate Division, reversing the Court of Claims, made findings to the effect that claimant was, on June 21, 1944, dangerously insane. The evidence, which is on this point undisputed, not only preponderates in favor of that finding, but can hardly lead to any other conclusion.

Was this claimant “dangerous ”? Qualified persons thought he was a paranoiac. Paranoia is a psychosis and persons suffering therefrom are psychotics who need medical treatment, and sometimes show sudden and unpredictable outbursts of violence. ‘ ‘ In dealing with paranoiacs it must be remembered that one is dealing with a class of patients who are potentially dangerous, that to this group belong perhaps the most dangerous of the so-called insane, and aside from matters of psychoanalysis, or in fact of any questions of therapeutic endeavor, it must be realized that where it is evident that the welfare of the individual and the welfare of society cross, the welfare of the individual must give way in favor of that of society. If the paranoiac is actually dangerous it is necessary to intern him in some institution where he will get proper care. The question as to whether a given paranoiac is dangerous or not, in the absence of overt acts, is often an extremely difficult one to decide (Diseases of the Nervous System, Jelliffe and White, p. 986). Fifty years ago this court knew of this dangerous disease (People v. Braun, 158 N. Y. 558, 564).

Given symptoms of paranoia, the decision as to whether a peculiar paranoiac is or is not dangerous is for qualified physicians to make. The courts cannot close their eyes to modern medical learning, or act as their own' experts on psychiatric problems.

I agree with the Appellate Division that “ upon the whole record in the case * * * the claimant was properly and legally admitted to Marcy State Hospital and was properly and legally treated and confined in said hospital from June 21, 1944, to August 21, 1944, both dates inclusive.” I accordingly favor affirmance, with costs.

Lottghran, Ch. J., Lewis and Conway, JJ., concur with Fuld, J.; Desmond, J., dissents and votes for affirmance in opinion in which Thacher and Dye, JJ., concur.

Judgment reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. John Bester, Appellant.
    Argued March 4, 1948;
    decided April 22, 1948.

      Joseph Lonardo forappellant.
    I. The instructions concerning the jury’s order of consideration, directing them to give priority to the felony murder theory, and the submission to the jury of a “ chart ” showing felony murder on top, prejudiced the defense. (People v. Snyder, 297 N. Y. 81.) II. The reception of the hammer in evidence constituted prejudicial error. (People v. Corbisiero, 290 N. Y. 191.) III. There were erroneous instructions as to extent of intoxication. (People v. Leonardi, 143 N. Y. 360; People v. Gerdvine, 210 N. Y. 184; People v. Crumble, 286 N. Y. 24; People v. Van Zandt, 224 N. Y. 354; People v. Conroy, 33 Hun 119, 97 N. Y. 62.) IV. There were no instructions as to reasonable doubt on intoxication issue. (People v. Crumble, 286 N. Y. 24; People v. Levan, 295 N. Y. 26; People v. Odell, 230 N. Y. 481.) V. There was no instruction as to reasonable doubt whether a felony was in progress. VI. There was no instruction as to reasonable doubt on issue whether intoxication affected the forming of an intent to rób. (People v. Levan, 295 N. Y. 26.) VII. The charge upon the felony theory was silent about lower degrees. (People v. De Jesus, 290 N. Y. 789; People v. Richardson, 287 N. Y. 629; People v. Koerber, 244 N. Y. 147; People v. Cummings, 274 N. Y. 336; People v. Lunse, 278 N. Y. 303; People v. Moran, 246 N. Y. 100; People v. Wagner, 245 N. Y. 143.)

      Frank S. Hogan, District Attorney (Whitman Knapp, Eugene A. Leiman, William Hoppen and Edgar J. Nathan 3d of counsel), for respondent.
    I. The trial court properly directed the jury as to the order in which they were to consider the forms of homicide. (People v. Schappes, 291 N. Y. 575; People v. Little, 295 N. Y. 656; People v. Clark, 289 N. Y. 618; People v. Snyder, 297 N. Y. 81; People v. Willson, 109 N. Y. 345; State v. Norton, 227 Iowa 13; Dillon v. State, 137 Wis. 655; People
      v. Daniel, 297 N. Y. 538; People v. Little, 295 N. Y. 656; People v Maduro, 291 N. Y. 529; People v. De Jesus, 290 N. Y. 789; People v. Clark, 289 N. Y. 618; People v. Mardavich, 287 N. Y. 344; People v. Richardson, 287 N. Y. 629; People v. Cvek, 287 N. Y. 701; People v. Pryor, 283 N. Y. 623.) II. Defendant’s guilt was proved beyond a reasonable doubt. (People v. Becker, 215 N. Y. 126; People v. Atlas, 183 App. Div. 595, 230 N. Y. 629.) III. The hammer was properly received in evidence.
   Per Curiam.

The Trial Judge handed to the jury a chart listing “ the crimes submitted to you ” and directing the jury to consider such crimes in the order in which they are set forth on this Chart.” The sequence on the chart was as follows: “ Murder in the first degree, as a felony murder; murder in the first degree by premeditated and deliberate design; murder in the second degree; manslaughter in the first degree; manslaughter in the second degree ”. This procedure is now challenged by the defendant as being inconsistent with the opinion of Conway, J., in People v. Snyder (297 N. Y. 81, 90-91), but the proposition thus invoked (which had the support of three members of this court in the Snyder case) cannot here be considered, since the point is not presented by sufficient exceptions. (See Code Grim. Pro., § 420-a.)

The judgment should - be affirmed.

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

Judgment affirmed.


author: Conway, J.

text:
    The People of the State of New York, Respondent, v. Max Becker, Appellant.
    Argued March 18, 1948;
    decided April 22, 1948.

      Nathaniel L. Goldstein, Attorney-General (William S. Elder, Jr., Wendell P. Brown, Patrick H. Glune and Herman N. Harcourt of counsel), for respondent.
    I. The stay is witMn the inherent power of the Appellate Division. (Genet v. Delaware & Hudson Canal Co., 113 N. Y. 472; Smith v. Kimball, 289 P. 588, 70 Am. St. Rep. 101; People ex rel. Sabatino v. Jennings, 246 N. Y. 258.) II. There was no abuse of discretion in the granting of the stay. (Granger v. Craig, 85 N. Y. 619; People ex rel. Albanese v. Hunt, 266 App. Div. 105, 292 N. Y. 528; People ex rel. Carollo v. Brophy, 294 N. Y. 540; People ex rel. Lewis v. Foster, 296 N. Y. 891; Matter of Lyons v. Rosenberg, 271 App. Div. 946; People ex rel. Schali v. Deyo, 181 N. Y. 425; People v. Sandoval, 262 App. Div. 288; Gibbs v. Kahn, 71 Misc. 177.)
    - Max Becker, appellant in person.
    I. The stay neither enforces a right nor restrains a court from proceeding in excess of its jurisdiction. It does deprive defendant of rights vested in him by virtue of a judgment of the Kings County Court, and it restrains the Supreme Court of Cayuga County from proceeding within its jurisdiction to a determination concerning such vested rights properly before it for disposition. (People ex rel. Sabatino v. Jennings, 246 N. Y. 258; People ex rel. Adams v. Johnson, 44 Misc. 550; 1909 Atty. Gen. 802; 1904 Atty, Gen. 345; Matter of Lyons v. Robinson, 293 N. Y. 191; People ex rel. Bennett v. Merritt, 286 N. Y. 674; Matter of Stebbins v. Sherwood, 241 App. Div. 615.) II. Any claim that Special Term did not have jurisdiction to determine the matter presented on the proceeding for a peremptory order of mandamus to compel the Commissioner of Correction to submit defendant’s name to the Governor as one whose time may he diminished under the provisions of article 9 of the Correction Law on the judgment rendered by the Kings County Court on October 19, 1926, is frivolous. (Civ. Prac. Act, § 1287.) HI. The commissioner improperly withheld certification of defendant’s name from the Governor’s consideration. (People ex rel. Sabatino v. Jennings, 246 N. Y. 258.)
   Conway, J.

The defendant was convicted, in the County Court of Kings County in October, 1926, of the crimes of burglary, third degree, as a second offense and grand larceny, second degree, as a second offense. He was sentenced to serve a term of twenty years upon the conviction of burglary and to serve a term of ten years upon the conviction of grand larceny.

While imprisoned, the defendant was convicted of an attempt to escape in 1930, in the Supreme Court, Cayuga County. Upon that conviction he received a sentence of twelve years, to commence upon the expiration of the sentences already pronounced upon him. In June, 1947, the defendant commenced a proceeding alleged to be in the nature of coram nobis, claiming that the maximum sentence which could have been imposed upon him for the crime of attempt to escape was seven years. In that proceeding the contention of the defendant was upheld and the prior sentence vacated. The court then resentencec him to serve a term of three and one-half years and suspended execution of judgment thereon. From that decision the District Attorney and- the Attorney-General, representing the Warden of Attica State Prison, appealed to the Appellate Division and the appeal is now pending undetermined. We are not concerned here with the merits of that appeal nor with the disposition which may be made of it. As a result of the decision, however, the Prison Board of Attica State Prison in October, 1947, recommended a reduction of sentence for the prisoner (see Correction Law, §§ 234, 235) and, in accordance with section 232 of the Correction Law, the warden forwarded its report and recommendation to the Governor through the Department of Correction. On the advice of the Attorney-General, the Commisisoner of Correction withheld submission of the report and it has not yet been submitted to the Governor.

Section 232 of the Correction Law, insofar as applicable here, reads as follows: “Monthly report of warden to governor. On any day not later than the seventh day of each month, the warden or superintendent of each of the state correctional institutions and of each of the penitentiaries in this state shall forward to the governor through the department of correction a report, directed to him, of any prisoner whose term may be diminished and who may be released the following month, by reason of the reduction of his or her sentence, in the manner provided in this article, which may be written or printed * * * ”, it is clear that the Commissioner of Correction was required to forward the report and recommendation to the Governor. Had he done so and had the Governor acted upon it the defendant would have been eligible to be permitted to go on parole outside of the prison walls beginning on or about the 6th day o.f November, 1947 (see Correction Law, § 241).

In December, 1947, the prisoner served an order to show cause why an order of mandamus should not issue to compel the Commissioner of Correction to forward to the Governor the report and recommendation of the Prison Board of Attica State Prison. Thereupon the Attorney-General obtained from the Presiding Justice of the Appellate Division, Fourth Department, an order which stayed all proceedings on or pursuant tu two orders of Special Term including “ a certain order in the Matter of the Application of Mas Becker for a Peremptory Order of Mandamus directing the Commissioner of Correction to certify his name to the Governor and to.pay him substantial damages and directing the Warden of Attica State Prison to produce Becker before a Special Term of the Supreme Court to be held in Auburn on December 20, 1947 * * * ” pending a hearing of the application for such a stay by the full court. On January 14, 1948, the Appellate Division, Fourth Department, directed a continuance of the stay.

The proceeding alleged to be in the nature of coram nobis was entitled in the criminal action People of the State of New York v. Max Becker. That was the action in which the prisoner had been convicted of an attempt to escape. The stay was granted in that criminal action and not in the criminal action which had its venue in Kings County. It was in the latter action that Becker was serving the sentences, totaling thirty years, as to which the prison hoard reported and recommended that there should he a reduction.

It is in the action commenced in Cayuga County that the appeal is now pending in the Appellate Division, Fourth Department. The execution of the judgment in that action has been suspended. If that had been the only action pending against the defendant, he would have been freed at the time the execution of sentence was suspended. Had it been the only pending action, no judge or court would have had the power to keep the defendant imprisoned during the pendency of an appeal by the District Attorney or the Attorney-General because it was thought that the decision resentencing the prisoner and suspending execution of judgment was improper and might be reversed. Had it been claimed-that the court had no jurisdiction or power to set aside the original sentence and then to resentence and to suspend execution of the judgment, the proper remedy would have been to apply for an order of prohibition. That, however, was not done. In applying to the Appellate Division for the stay of the mandamus proceeding the Attorney-General was entirely frank in stating his position. His deputy in his affidavit said: ‘( For the sake of argument on this application the deponent will assume that by virtue of the vacating of the twelve year sentence and a substitution of the three and a half year suspended sentence, that Becker has become eligible to have his name certified to the Governor, pursuant to the provisions of Article 9 of the Correction Law. However, the People of the State of New York sincerely feel that the Special Term was in error when it vacated this sentence and imposed a suspended sentence.”

Later in the same affidavit he said: “ The People of the State of New York feel that this is a most appropriate occasion for asking this Court to stay the pending mandamus proceeding and all or any other further proceedings in this matter other than prosecution of the appeal itself, until the appeal is argued and determined.”

Neither the District Attorney nor the Attorney-General claims that the stay so obtained from the Appellate Division was in the nature of an order of prohibition or, indeed, had any statutory justification. It is claimed instead that the granting of it was within the inherent power of the Supreme Court. We know of no such inherent power in the Appellate Division of the Supreme Court in connection with an appeal pending before it by the District Attorney or the Attorney-General. (See Code Crim. Pro., § 526; People ex rel. Sabatino v. Jennings, 246 N. Y. 258.)

Had the mandamus order sought by the defendant been granted, no irreparable harm would have been done to the People of the State of Hew York. The recommendation of the prison board would have been forwarded through the Commissioner of Correction to the Governor and it would have been for him to act upon it. Statutory discretion is expressly confided in him by section 241 of the Correction Law to allow the same, in whole or in part ”. If upon the appeal to the Appellate Division there be, a reversal of the action of the Justice of the Supreme Court in setting aside the original sentence of twelve years, then imposing a new one and then suspending execution of judgment, the prisoner may be again placéd within prison walls and enclosure if he shall have been released on parole (see Correction Law, § 220). While on such parole the prisoner is still in legal custody and under the control of the warden of the State prison from which he was released (Correction Law, § 241). In the meantime there resides in this State no power in any court to stay a statutory proceeding looking toward the orderly consideration by the Governor of the custody of a prisoner sentenced to a State prison because there is either probability or possibility that there may be a reversal of a decision favorably affecting the prisoner by an appellate court.

We treat the appeal here as one from a final order in a special proceeding — the special proceeding constituting the' application in the first instance to the Appellate Division .for a stay, in one criminal action, of a special proceeding in the nature of mandamus pending in the Supreme Court of the State of Hew York affecting still another and separate criminal action.

The order granting the stay of the proceeding in the nature of mandamus is reversed and the stay vacated.

Loughban, Ch. J., Lewis, Desmond, Thacheb, Dye and Fuld, JJ., concur.

Order reversed, etc.


text:
    In the Matter of the Estate of Charlotte B. Ridings, Deceased. Elizabeth D. Brainard et al., Appellants; First Citizens Bank and Trust Company of Utica, as Successor Executor and Trustee under the Will of Charlotte B. Ridings, Deceased, Respondent.
    Argued March 8, 1948;
    decided April 23, 1948.

      Gardner A. Gallanen, Jr., and Arthur J. Foley for appellants.
    I. The executor-trustee has failed to prove its case or show itself free from negligence in the discharge of its duties in the handling of the estate. (Matter of Hosford, 27 App. Div. 427; Matter of Joost, 50 Misc. 78; Matter of Eisner, 5 N. Y. S. 30; Underhill v. Newburger, 4 Redf. 499; Matter of Richardson, 149 Misc. 192; Matter of Ziegler, 258 App. Div. 1077.) II. The executor-trustee has failed to show that its management of the estate complied with the duty imposed by law. (City Bank Farmers Trust Co. v. Cannon, 264 App. Div. 429, 291 N. Y. 125; Meinhard v. Salmon, 249 N. Y. 458; Matter of Dalsimer, 251 App. Div. 385, 277 N. Y. 717; Matter of Clark, 257 N. Y. 132; Matter of Richardson, 149 Misc. 192, 229 App. Div. 738; Strauss v. U. S. F. & G. Co., 63 F. 2d 174; City Bank Farmers Trust Co. v. Smith, 263 N. Y. 292; Ireland v. Ireland, 84 N. Y. 321.) III. Objeetants have affirmatively shown negligence, if not actual misfeasance, on the part of the bank executor-trustee, sufficient to impel a surcharge for the loss ■sustained by the estate. (United States ex rel. Willoughby v. Howard, 302 U. S. 445; Zimmerman v. Coblenz, 170 Md. 468; Weigand v. United Traction Co., 221 N. Y. 39; Dolfini v. Erie R. R. Co., 178 N. Y. 1.) IV. The executor-trustee retained its own corporate stock as an estate asset in violation of its fiduciary responsibilities. V. The executor-trustee violated the rule of undivided loyalty. (City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125; Carrier v. Carrier, 226 N. Y. 114; Matter of Durston, 297 N. Y. 64; Zimmerman v. Coblenz, 185 A. 342.)

      James F. Hubbell for respondent.
    I. It was not necessary for the testator specifically to name the stock in his will in order to give the executor and trustee power to hold it. H. The language of the testator in authorizing investments should be interpreted with the utmost liberality with a view of carrying out his intention. He is permitted to make all sorts of speculative investments in his lifetime and having by his efforts accumulated enough property to establish a trust fund, should be permitted to decide what risks may be taken with the fund after his death.
   Per Curiam.

The rule of undivided loyalty as applied to the retention by a corporate trustee of shares of its own stock is subject to the settlor’s instructions when such instructions are clearly related to shares previously owned by the settlor. In this case the testatrix expressly authorized the retention in the trust of any investments left by her.

The order of the Appellate Division and the Surrogate’s decree entered thereon should be affirmed, with costs to all parties appearing separately and filing briefs, payable out of the estate.

Loughban, Oh. J., Lewis, Conway, Desmond, Thaoheb, Dyb and Fuld, JJ., concur.

Order affirmed, etc.


author: Loughran, Ch. J.

text:
    In the Matter of Albert Tartaglia et al., Respondents, against Harold J. McLaughlin, a Justice of the Municipal Court of the City of New York, et al., Appellants.
    Argued March 16, 1948;
    decided May 20, 1948.

      John P. McGrath, Corporation Counsel (Stanley Buchsbaum, Seymour B. Quel, William L. Messing and David A. Steinbock of counsel), for appellants.
    I. Local Law No. 66 does not violate the Federal Constitution. (People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429; Guttag v. Shatzkin, 230 N. Y. 647; Levy Leasing Co. v. Siegel, 230 N. Y. 634, 258 U. S. 242; Block v. Hirsh, 256 U. S. 135; Marcus Brown Co. v. Feldman, 256 U. S. 170; Twentieth Century Associates v. Waldman, 294 N. Y. 571; Finn v. 415 Fifth Ave Co., 153 F. 2d 501; 328 U. S. 838.) II. Under the New York Constitution, the City Home Rule Law, and the New York City Charter, the city has the power to enact legislation to protect the safety and health of its inhabitants so long as the legislation does not conflict with State laws. (City of Rochester v. Macauley-Fien Milling Co., 199 N. Y. 207; Village of Carthage v. Frederick, 122 N. Y. 268; People v. Lewis, 295 N. Y. 42.) I'll. There is no conflict between Local Law No. 66 and any State law. (People v. Lewis, 295 N. Y. 42; People v. Sampsell, 248 N. Y. 157; People ex rel. Oltarsh v. Levy, 152 Misc. 674, 242 App. Div. 617, 266 N. Y. 523; Polinsky v. People, 73 N. Y. 65; People v. Steinhardt, 245 N. Y. 553; Reich v. Cochran, 201 N. Y. 450; People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429; Gray v. Powell, 314 U. S. 402; Welch Co. v. New Hampshire, 306 U. S. 79.) IV. Local Law No. 66 is applicable to the petitioners despite the fact that it was enacted after a final order had been issued to them in an eviction proceeding, but before a warrant had been issued. (Matter of Cohen v. Starke, 269 App. Div. 256; Rosen v. 370 West 35 St. Corp., 184 Misc. 172; People ex rel. Rayland Realty Co. v. Fagan, 194 App. Div. 185, 230 N. Y. 653; Lambert v. Lambert, 270 N. Y. 422.) V. The enactment of chapter 4 of the Laws of 1948, removed any question as to the validity of Local Law No. 66. (People ex rel. Clark v. Gilchrist, 243 N. Y. 173; Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271; Bradford v. County of Suffolk, 283 N. Y. 503; Smith
      v. City of Buffalo, 159 N. Y. 427; Robia Holding Corp. v. Walker, 257 N. Y. 431.) VI. Local Law No. 66 is not in conflict with the Federal Housing and Bent Act of 1947. (People v. Mailman, 182 Misc. 870, 293 N. Y. 887; People v. Lewis, 295 N. Y. 42; People v. Sell, 310 Mich. 305; Davies Warehouse Co. v. Bowles, 321 U. S. 144; Kelly v. Washington, 302 U. S. 1; Dickson v. Uhlmann Grain Co., 288 U. S. 188.)

      Arthur Cooperman for respondents.
    I. Section U41-7.0 of the Administrative Code of the City of New York, effective September 17, 1947, is an attempt to legislate upon matters of exclusively State concern, and, therefore, unconstitutional. (City Home rule Law, § 11, subd. 2; § 12, subd. 2; Adler v. Deegan, 251 N. Y. 467; Matter of Kress & Co. v. Dept. of Health, 283 N. Y. 55; Jewish Consumptives’ Relief Soc. v. Town of Woodbury, 230 App. Div. 228, 256 N. Y. 619; People ex rel. Kieley v. Lent, 166 App. Div. 550, 215 N. Y. 626; City of New York v. Maltbie, 274 N. Y. 90; People v. County of Westchester, 282 N. Y. 224; Gennis v. Milano, 135 Misc. 209.) II. The justice who issued a final order of eviction must issue a warrant. (Civ. Prac. Act, § 1432; People ex rel. Allen v. Murray, 2 Misc. 152, 138 N. Y. 635; People ex rel. Kilgallon v. Nuhns, 92 Misc. 312.) HI. Chapter 4 of the Laws of 1948 is void and unconstitutional. (Matter of Mooney v. Cohen, 272 N. Y. 33; Rand v. Massachusetts Benefit Life Assn., 18 Misc. 336, 20 App. Div. 392; People ex rel. Mutual Life Ins. Co. v. Board of Supervisors, 16 N. Y. 424; Weisberg v. Weisberg, 112 App. Div. 231.) IV. Issuance by the Office of Price Administration of a certificate authorizing landlord to proceed made required grounds for removal of tenant inapplicable. (New York City Housing Authority v. Curington, 181 Misc. 955.) V. The “ Sharkey Law ” (Administrative Code Of the City of Néw York, § U41-7.0), effective September 17, 1947, and chapter 4 of the Laws of 1948 are not retroactive so as to affect any final order entered or proceeding commenced prior to its effective date. (Western N. Y. & Pa. Ry. Co. v. City of Buffalo, 296 N. Y. 93; Hastings v. Byllesby & Co. [Granbery], 293 N. Y. 413; Shielcrawt v. Moffett, 294 N. Y. 180; Jacobus v. Colgate, 217 N. Y. 235.)
   Loughran, Ch. J.

As landlords of an apartment property in Brooklyn, the petitioners demand an order for a warrant whereby the tenants of the premises will be dispossessed therefrom. One of the two defendants is a Justice of the Municipal Court of the City of New York and the other is the clerk of that tribunal. Nor the sake of convenience, we shall speak of the petitioners as the landlords and of the defendants as the Municipal Court.

Having obtained a then necessary eviction certificate from the Bent Control Division of the Federal Office of Price Administration, the landlords, on March 11, 1947, instituted in the Municipal Court a summary proceeding to recover possession of the property in question. Though the' final order made in that proceeding ran against the tenants, issuance of a warrant to dispossess them was immediately stayed and the landlords were thereafter required to show cause on September 18, 1947, why a further stay should not be granted. Before that date came round, however, the City of New .York enacted an emergency local law (Local Laws, 1947, No. 66 of City of New York) barring the removal of apartment tenants at any time before September 30, 1948, except for nonpayment of rent, unless a local body — the Temporary City Housing Bent Commission — should in a particular case certify the existence of one or more other specified grounds for eviction. (Administrative Code of the City of New York, § U41-7.0.) This local law was made applicable “ to all pending and future eviction proceedings ” (subd. o). Accordingly, on the return of the above-mentioned order to show cause on September 18, 1947, a warrant of eviction was again withheld — this time until October 11, 1947 — by an order in which the Municipal Court also called upon the landlords to obtain in the meantime an eviction certificate from the Temporary City Housing Bent Commission under the local law. Upon their failure to comply with that order, the landlords were dismissed by the Municipal Court and they then brought in the Supreme Court this article 78 proceeding to compel issuance of the warrant of eviction which the Municipal Court had denied them.

On the strength of the prohibition against local legislation that would change or supersede or be inconsistent with an act of the Legislature (N. Y. Const., art. IX, § 12; City Home Buie Law, § 11, subd. 2), Special Term nullified the local law for incompatibility with the long-existing statute which — in all courts of record in this State — regulates the prosecution of summary proceedings to recover possession of real property (Civ. Prac. Act, art. 83). The Appellate Division affirmed that declaration of the right of the landlords to a warrant ousting their tenants. But the decision so made by the courts below soon became of no more than secondary importance, because the Legislature thereupon “ legalized and validated ” the local law (and other related local laws) by enacting a statute (L. 1948, ch. 4) which says: “Notwithstanding any defect, irregularity or omission of any lawful requirement or lack of statutory authority, all acts and proceedings' of the local legislative body, the board of estimate and the mayor of the city of New York in enacting local law number fifty-four, local law number sixty-six, local law number sixty-seven, local, law number sixty-eight, local law number seventy-three and local law number eighty of the local laws of the city of New York for the year nineteen hundred forty-seven, and all of the provisions of such local laws are hereby legalized and validated. Such local laws shall be deemed effectual as of the date when such local laws purported to take effect and all acts authorized thereby are hereby legalized and confirmed.”

All other things being in order, this curative statute may be given effect on this appeal (see Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271, 281; People ex rel. Clark v. Gilchrist, 243 N. Y. 173,180). When that statute went into effect on February 3,1948, the summary proceeding which long theretofore had been instituted by the landlords in the Municipal Court was still pending within the meaning of the local law, for no warrant was ever issued in that proceeding, though a final order in favor of the landlords had been entered therein (cf. People ex rel. Rayland Realty Co. v. Fagan, 194 App. Div. 185, affd. 230 N. Y. 653; Matter of Cohen v. Starke, 269 App. Div. 256). Therefore, we address ourselves at once to the question whether the curative statute — at least as of its effective date — is a valid enactment.

Such an adoption of a local law by State legislation may be an entirely sound procedure, even if the local law in itself was not a legitimate exercise of city power (see Robia Holding Corp. v. Walker, 257 N. Y. 431, 437; Bradford v. County of Suffolk, 283 N. Y. 503, 505). Broad as they are, the above words of the curative statute do not exceed the jurisdiction of the Legislature to validate all that it might have authorized in the first place (see Smith v. City of Buffalo, 159 N. Y. 427, 433). Hence, as we think, the curative statute does not overrun the ban placed by the State Constitution (art. Ill, § 16) upon the incorporating of one statutory provision into another by a process of mere reference (cf. People ex rel. Commissioners v. Banks, 67 N. Y. 568; Bradford v. County of Suffolk, supra; People v. Mailman, 293 N. Y. 887). Nor does the curative statute attempt to affect the localized property, affairs or government ” of a city contrary to the home rule principle guaranteed by section 11 of article IX of the State Constitution (cf. Adler v. Deegan, 251 N. Y. 467). In short, the curative statute is undoubtedly valid so far as the law of this State is concerned.

At this point, we go back for a moment to the eviction certificate that was granted to the landlords by the Federal rent authority. Of course, that Federal license did not give the landlords a right to possession; indeed it merely authorized them to resort to any remedies that were open to them in the State courts. (See Parker v. Porter, 154 F. 2d 830, 832, revd. on other grounds sub nom. Parker v. Fleming, 329 U. S. 531.)

Under the now State-adopted local law, the facts determinative of a landlord’s right to possession must be passed upon by a local administrative agency in the first instance. This variation from the Federal Housing and Rent Act of 1947 is the only difference between the two enactments that we need here consider, inasmuch as the petitioners have not shown themselves to be aggrieved by any other. Emergency control of rents and evictions would seem to be an affair for concurrent Federal and State action, at least until the field is pre-empted by Congress and so long as local legislation in that field does not conflict with the letter or policy of any Federal enactment (cf. Block v. Hirsch, 256 U. S. 135; Gilbert v. Minnesota, 254 U. S. 325; Southern Pacific Co. v. Arizona, 325 U. S. 761, 766; Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767, 772-773). Neither the Federal Housing and Rent Act of 1947 (61 U. S. Stat. 193; U. S. Code, tit. 50, Appendix, § 1881 et seq.) nor that of 1948 (Public Law 464, 80th Cong.) contains any prohibition against local complementary action by the States, though such a prohibition did appear in an earlier version of the Federal legislation (see Emergency Price Control Act of 1942, § 2, as amd. by Price Control Extension Act of 1946, § 5, 60 U. S. Stat. 664, 671; U. S. Code, tit. 50, Appendix, § 902). Nor can it be said, in our judgment, that a State law commanding a landlord to submit to a local administrative body the question of his right to possession “ conflicts with the Act of Congress, or plainly and palpably infringes its policy.” (See Southern Pacific Co. v. Arizona, supra, at p. 766.) As we see it, a requirement of that kind is simply an aid in the enforcement of the Federal statute and does not substantially differ from the local penalty provisions that were sustained in People v. Lewis (295 N. Y. 42) and People v. Mailman (293 N. Y. 887, supra).

The orders should be reversed and the petition dismissed, without costs.

Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ., concur.

Orders reversed, etc.


text:
    Starlight Fabrics, Inc., Respondent, v. Glens Falls Insurance Company, Appellant.
    Argued March 15, 1948;
    decided May 21, 1948.

      Gregory 8. Bivkins and William B. Vincent for appellant.
    I. At the time the theft occurred the goods had not been shipped from the premises of the plaintiff. (Mora y Ledon v. Havemeyer, 121 N. Y. 179; London Produce Co., v. Poels & Brewster, Inc., 216 App. Div. 424; Krauter v. Menchacatorre, 202 App. Div. 200; Goldenberg v. Cutler, 189 App. Div. 489; Harrison v. Fortlage, 161 U. S. 57; Macondray & Co. v. Grace & Co., 30 F. 2d 647; Chicago R. I. & P. Ry. Co. v. Petroleum Refining Co., 39 F. 2d 629; San Francisco Iron & Metal Co. v. Sweet Steel Co., 23 F. 2d 783.) II. The goods were not in due course of transit in the custody of a messenger when the theft occurred. (Rummell v. Blanchard, 216 N. Y. 348; San-Nap-Pak Mfg. Co. v. Firemen’s Ins. Co., 47 N. Y. S. 2d 542, 268 App. Div. 905; Glenmore Silk Corp. v. Fidelity & Guar. Fire Corp., 151 Misc. 734.)

      Charles T. Weintraub and Morris Fish for respondent.
    I. The goods were in the custody of a messenger when the theft occurred. (Mora y Ledon v. Havemeyer, 121 N. Y. 179.) II. The goods were in transit in the custody of the messenger when the loss occurred. (Rummell v. Blanchard, 216 N. Y. 348 ; San-Nap-Pak Mfg. Co. v. Firemen’s Ins. Co., 47 N. Y. S. 2d 542, 268 App. Div. 905; Underwood v. Globe Ind. Co., 217 App. Div. 63; Hanson v. National Sur. Co., 257 N. Y. 216.)
   Conway, J.

This action was brought by the assured against the insurer on an inland marine policy (see Davis Yarn Co. v. Brooklyn Yarn Dye Co., 293 N. Y. 236, 247) to recover for loss of goods by theft while in transit. The case was submitted on an agreed statement of facts.

It appears that on March 30, 1943, plaintiff had five cartons and one package of merchandise, concededly of a value of $1,769.40, to be, shipped to a buyer in Boston, Mass. The purchaser had stipulated that the goods might be moved from New York to Boston either via A. Towle Company or Highway Express, both companies named being engaged in the trucking business between New York and Boston.” The agreed statement of facts recites that if Leo Fluhr and Sidney Blasberg, both employees of plaintiff, were called they would testify in accordance with submitted written statements.

The substance of Fluhr’s statement is that on March 30,1943, plaintiff called the Towle Trucking Company to have the goods picked up. It failed to do so, and on the following day, March 31st, plaintiff called the trucking company again and was told that a man would be there shortly to pick up the merchandise. Fluhr then stated: “ About 11:00 o’clock that morning, a fellow came in and said, * Have you got anything for Towles.’ We assumed without a question that this was Towles truckman, and I instructed Sidney [Blasberg], who had just come back from a delivery, to take this shipment down to their truck, which he did.” After a short period Blasberg came upstairs and said that the truckman told him there were more goods for him. Fluhr told Blasberg that there were no other goods for the truckman; that he should not have left the goods without a receipt and to go downstairs to get one. Fluhr himself went down to the street by a passenger elevator and saw Blasberg looking for the truck and- truckman. After determining that the Towle Company had not picked up the merchandise, Fluhr called the police.

Blasberg’s statement is to the effect that on the day in question Fluhr asked him to take the shipment downstairs to a truck-man supposedly from the Towle Company. He stated: After I brought the goods down, and helped to load them on a truck, the license number of which was New York commercial 422-528, the truckman sent me upstairs again for some more goods.” He was told by Fluhr that there were no more goods, and he immediately ran downstairs. He asked the truckman for a receipt, and the truckman suggested that they go into the freight entrance where he proceeded to write a receipt on a plain piece of paper. Blasberg refused to accept it and the truckman suggested that they go outside where he could ask another truckman for a receipt form. When outside the truckman went behind another truck and slipped away ” from Blasberg and at the same time, the truck on which the goods were loaded, also disappeared

The goods were not received by the Towle Company or recovered by plaintiff, and the imposter-truckman was never apprehended.

The basic insuring provision of the policy is found in “ Transportation Eider 1 B which provides in part: “ (Railroad, Railroad Express and Steamer Shipments) Including Theft, Pilferage and/or Non-delivery.

“ The risk under this insurance to attach from the time the goods and/or merchandise leave the store, warehouse or factory at initial point of shipment and continue thereafter while the said goods and/or merchandise are in due course of transit and at the risk of the Assured in the custody of:—

“ (a) Any Railroad or Railroad Express Company * * *

“(b) The Regular Lines of Steamers * * *■

“ (c) Public Truckmen, Private Truckman (including trucks owned and/or operated by and/or for the Assured, and/or Land Transfer and/or Transportation Companies ' * * *). 'until same are delivered at the store, warehouse or factory at .destination; including risk while in and/or on docks, wharves, piers, bulkheads, depots, stations and/or platforms, but only while actually in transit in the custody of the Carriers above provided and at the risk of the Assured.’’ (Emphasis supplied.) The policy also contains the following indorsement:

“ ENDORSEMENT.

* * * January 17th 1943

It is understood and agreed that this insurance, subject to the terms and conditions of the policy, is extended to cover the within described goods and/or merchandise —

“ (a) * * *.

“(b) While in the custody of messengers or in taxicabs, private passengers ears and/or handcarts to an amount not exceeding One Thousand & 00/100 ($1,000.00) Dollars, it is, ■ however, expressly understood and agreed that this coverage is subject to and shall not be deemed additional to the limit of liability in any one casualty.

“(c) While on elevators, landing sheds, depots, station platforms, sidings, sidewalks, yards or elsewhere incidental to loading, unloading and/or removal.

“ and this insurance shall cover accordingly.

All other terms cmd conditions remaining unchanged.” (Emphasis supplied.)

In the trial court plaintiff sought alternative relief under each of the above provisions of the. policy. It claimed that the goods were stolen while in transit either (1) in the custody of a public or private truckman within the coverage of Transporation Rider B {supra) in which event it would be entitled to the full amount of its loss, $1,769.40; or (2) in the custody of a “ messenger ” within the coverage of the messenger indorsement {supra), in which event it would be entitled to $1,000, the limit of liability under the indorsement.

The Trial Justice rejected both grounds for relief holding that in'any event the policy required the goods to be “in due course of transit ” at the time of the theft and that transit had never commenced. Plaintiff has abandoned its claim under the first of its two theories of liability and now relies only upon the second, viz., that at the time of the theft the goods were in the custody of a messenger within the meaning of the indorsement and that it should have judgment for $1,000.

Had the goods been delivered directly to the imposter when he called upstairs at plaintiff’s premises, it is clear that plaintiff could not recover under the policy. (Glenmore Silk Corp. v. Fidelity & Guar. Fire Corp., 151 Misc. 734.) Here, because Blasberg, plaintiff’s employee, carried the goods downstairs to the street and helped the thief load them onto his truck, may we say that when the theft occurred the goods were (1) in the custody of a messenger and (2) in due course of transit, as those terms are used in the policy? We think not.

The messenger indorsement was presumably added for the purpose of extending the coverage. Concededly a shipment made by the assured to its buyer by a messenger is covered by the messenger indorsement if the goods are stolen from him. (The policy makes no distinction between employees and nonemployees of the assured as messengers, and defendant does not contend that an employee may not be a messenger within the meaning of this policy.) Here, however, the assured did not intend transportation of the goods by a “ messenger They were intended to be transported only by “ truck ”. The bailee which it was intended should transport the goods to the buyer was the A. Towle trucking company. It is true that goods may be transported part of the distance by messenger and part of the distance by truck, but to say that Blasberg may be deemed a messenger ” within the meaning of the indorsement because of the aid which he gave the thief in carrying the goods downstairs and in loading them onto the truck would be an undue extension of the .term messenger ”. The acts performed by Blasberg were in the nature of those performed by a clerk of the assured or by a truckman’s helper or loader.

Even if Blasberg were considered to be a “ messenger ”, the goods were not started “ in due course of transit ” as that term is used in the policy. That is one of the terms to which the messenger ” indorsement is subject. As in the case of other forms of transportation, in order for the goods to be covered while in the custody of a messenger, they must be “ in due course of transit ” at the time of the loss. The parties agree that on the authority of Rummell v. Blanchard (216 N. Y. 348, 355) and San-Nap-Pak Mfg. Co. v. Firemen’s Ins. Co. (47 N. Y. S. 2d 542, 544, affd. 268 App. Div. 905) goods are “ in transit ” after they have been delivered to a bailee for the purpose of transportation. The respondent in his brief adds the word “ carrier ” after the word bailee ” and then writes, The respondent, however, contends that in the case at bar the bailee or carrier was in law and fact the messenger Blasberg.” We do not think the man on the street or, indeed, a lawyer would read the insurance contract in such manner as to make Blasberg either a bailee or carrier. His possession was that of his employer, the assured. There was no bailment to him. The difficulty with the assured’s case is that it is straining words, and particularly the word messenger ”, to bring itself within the coverage of a transportation policy which was not written to cover this loss. The transportation had not begun. In the Bummell case (supra, p. 355) we wrote (Cardozo, J.): “ Merchandise is not in transit unless it has been delivered to a bailee for the purpose of transportation (Rosenthal v. Weir, 170 N. Y. 148, 154; Harris v. Pratt, 17 N. Y. 249, 252).”

Again, the bailee intended by the assured here to transport the goods was the A. Towle trucking company. It did not intend to make Blasberg bailee of the goods for the purpose of transportation. His act in carrying the goods downstairs and loading them on the thief’s truck was in effect the act of his employer in attempting to deliver the articles to the bailee who was to transport them to their destination. The delivery was never made and the transit never commenced.

Respondent relies on Underwood v. Globe Indemnity Co. (245 N. Y. 111) and Hanson v. National Surety Co. (257 N. Y. 216). Those cases are not applicable here since in both cases transit had begun and the question involved was whether the transit risk had terminated before the larceny occurred.

The judgment of the Appellate Division and that of the Appellate Term should be reversed, and judgment of City Court affirmed, with costs in this court, in the Appellate Division and in the Appellate Term.

Loughran, Ch. J., Lewis, Desmond, Thachee, Dye and Fuld, JJ., concur.

Judgment accordingly.


author: Desmond, J.

text:
    In the Matter of the Arbitration between R. B. Gantt, Doing Business under the Name of Southland Supply Company, Appellant, and Felipe y Carlos Hurtado & Cia., Ltda., Respondent.
    Argued April 22, 1948;
    decided May 21, 1948.

      Edward Jerome and Horace A. Teass for appellant.
    1. The demand for arbitration is unenforcible according to the law of New York.' (Matter of Huxley, 294 N. Y. 146.) II. The demand for arbitration is unenforcible by application of the statutory law of North Carolina. (Williams v. Manufacturing Co., 154 N. C. 205.) III. The principles of comity require the permanent restraint of this arbitration. (Green v. E. Tenn. R. R. Co., 37 Ga. 456; Titus v. Scantling, 4 Blackf. [Ind.] 89; Meacham v. Jamestown F. & C. R. R. Co., 211 N. Y. 346; Hamlyn & Co. v. Talisker Distillery, [1894], A. C. 202; Vitaphone Corp. v. Electrical Research Products, Inc., 166 A. 255; Franklin Sugar Refining Co. v. Lipowicz, 247 N. Y. 456; Hamilton v. Home Ins. Co., 137 U. S. 370; Westchester Mtge. Co. v. Grand Rapids & I. R. R. Co., 246 N. Y. 194; Johnston v. Compagnie Generale Transatlantique, 242 N. Y. 381; McLean v. Hardin, 56 N. C. 294.) iv. Sections 1 and 2 of article IV of the Constitution of the United States require permanent restraint of the arbitration demanded herein. (Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109; Broderick v. Rosner, 294 U. S. 629; Bradford Elec. Light Co. v. Clapper, 286 U. S. 145; Cole v. Cunningham, 133 U. S. 107.)

      Walter M. Hinkle, Irving I. Goldsmith and Robert G. Lind for respondent.
    I. An arbitration clause covering future disputes is merely unenforciblé at common law and is not void or invalid. (Williams v. Manufacturing Co., 154 N. C. 205; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Tobey v. Bristol County, 23 Fed. Cas. 1313; Matter of Webster v. Van Allen, 217 App. Div. 219.) II. The courts of New York may, under the statutes of this State, properly take jurisdiction of controversies presented under an arbitration clause affecting future disputes which provides that they shall be arbitrated within the State of New York. (Matter of Heyman, Inc., v. Cole Co., 242 App. Div. 362; Matter of Galban Lobo Co. [Haytian Amer. Sugar Co.], 271 App. Div. 310; Moyer v. Van-Dye-Way Corp., 126 F. 2d 339.) HI. An agreement to arbitrate a dispute concerns the means for enforcing rights, and, therefore, concerns the law of remedies which is determined by the less fori. (Meacham v. Jamestown, F. & C. R. R. Co., 211 N. Y. 346; Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261.) IV. The New York statute does not violate the full faith and credit clause found in section 1 of article IV of the United States Constitution. (M’Elmoyle v. Cohen, 13 Pet. [U. S.] 312; Order of Travelers v. Wolfe, 331 U. S. 586.) V. The New York statute does not violate the privileges and immunities clause found in section 2 of article IV of the United States Constitution. VI. The agreement is in writing and signed by the purported agents of the petitioner and of the respondent. Hence, the provisions of section 1449 of the Civil Practice Act have been complied with prima facie and petitioner is barred, since he makes this application as a matter of law, from raising the issue whether the said provisions have been complied with in fact. (Schickler v. Penrod Co., 222 App. Div. 627; Locke v. Pembroke, 280 N. Y. 430.)
   Desmond, J.

Petitioner Gantt is a North Carolina lumber dealer, using the business name of Southland Supply Company. Respondent Hurtado & Cia., Ltda., is a Nicaraguan partnership (or corporation) doing business in that Republic. In July, 1946, at High Point, North Carolina, an authorized representative of Hurtado made two written agreements with “ Southland Supply Company ”, the signatures of the latter being by W. 0. Carter, who, in one of those agreements, styled himself Manager ” but whose authority to contract for petitioner Gantt is now disputed by the latter. Each of these July, 1946, writings called for the sale and delivery by Hurtado to “ Southland Supply Company ”, of large quantities of various kinds of tropical woods to be shipped from Nicaraguan ports, at prices f.o.b. those ports, to High Point. Each of those agreements called for the opening by the buyer, for the seller, of an irrevocable letter of credit, the place where such letter of credit was to be obtained not being stated. Both those July, 1946, agreements were modified in various respects by a third document, signed at High Point in September of that year by a representative of Hurtado and by Southland Supply Company, W. 0. Carter ”. The September pact contained the first mention of arbitration, the language being: Any controversy or claims arising out of

or relating to this contract or the breach thereof shall be settled by arbitration in accordance with the rules of the Inter-American Commercial Arbitration Commission. This agreement shall be enforceable and judgment upon any award rendered by the arbitrators or a majority of them may be entered in any Court having jurisdiction. The arbitration shall be held in New York, N. Y.”

Later in September, 1946, respondent Hurtado, asserting that there had been a violation of contract by Southland Supply Company (or Gantt), in the latter’s alleged failure to set up the promised letter of credit, served on Southland a demand for arbitration before the Inter-American Commercial Arbitration Commission. Gantt did not reply to that demand, but commenced in Supreme Court, New York County, the present proceeding to restrain the proposed arbitration, alleging in his petition that Carter had signed the September, 1946, agreement without authority from him (Gantt). Petitioner first applied for a temporary order to restrain the arbitration pending a jury trial, which petitioner requested, of the preliminary question as to Carter’s authority (see Civ. Prac. Act, § 1458). That motion was granted at Special Term but immediately afterwards, and before the jury trial could be held (it has not yet been held, we are informed) petitioner Gantt made a further motion, this time for a permanent stay of arbitration, on the ground that the arbitration clause was wholly void by the laws of North Carolina, where the paper in which it appears was signed, and that therefore, according to petitioner, he could not be compelled to enter into any arbitration, anywhere. Special Term denied that second motion, holding that the arbitration clause, in its specific declaration that any arbitration was to “be held in New York, N. Y.” amounted to an unconditional consent by the parties to submit their contests to arbitration in New York State under New York arbitration procedures, and that, whether or not such an arbitration covenant could be enforced in North Carolina, it was enforcible under the law of the forum, i.e., New York. The Appellate Division, First Department, unanimously affirmed without opinion but granted petitioner Gantt leave to appeal to this court, certifying to us a question as to whether the order denying petitioner a permanent stay, was properly made.

We deal first with the question of the legality of the arbitration clause, since if it be entirely void, as petitioner argues, the case ends there. North Carolina has an arbitration statute (General Statutes of North Carolina, 1943, div. H, ch. 1, art. 45), but unlike our New York article 84 of the Civil Practice Act, the North Carolina enactment covers and enforces only agreements to submit existing controversies to arbitration. It does not mention at all the kind of arbitration covenant we have before us — a covenant to arbitrate controversies thereafter arising — and so we turn (see Tarpley v. Arnold, 226 N. C. 679, 680) to the North Carolina case law to see whether the clause here under scrutiny is good, or bad, in North Carolina. Petitioner says it is totally void, for all purposes, under North Carolina law, but his reliance at this point seems to be entirely on the use of the word void ” in Williams v. Branning Mfg. Co. (154 N. C. 205). An examination of that decision, and a number of others in North Carolina’s highest court, convinces us that North Carolina’s common law does not declare such covenants to be nullities without any legal existence or effect, but merely refuses to compel parties to arbitrate thereunder (see Williams v. Branning Mfg. Co., earlier appeal, 153 N. C. 7, 10; Nelson v. Atlantic Coast Line R. R. Co., 157 N. C. 194, 202, and particularly Tarpley v. Arnold, supra, 226 N. C. at p. 680). The second Williams case (supra), itself, as well as Tarpley v. Arnold (supra), and others of the above-cited North Carolina cases, plainly show that such agreements are given some effect by the North Carolina courts, since awards based thereon may be the subject of suits and defenses. In other words, North Carolina’s common law as to arbitration is substantially the same as was the common law in New York before our Legislature dealt with the whole matter of arbitration, and as it was, and is, in other States (see Haggart v. Morgan, 5 N. Y. 422; President, M. & Co. of D. & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250, 264; Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 271; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284, 293; Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 121). Having thus found that the arbitration treaty we are passing on was not void but unenforcible only, at the place where made, we turn to the question of whether it may be compulsorily enforced by the courts of New York. The, place of performance of the arbitration section, though not of the other parts of the September agreement, was to be New York. The New York statute (Civ. Prac. Act, art. 84) provides complete compulsion and full enforcement, as to such promises to arbitrate future-arising disputes. It is the law of the forum which, traditionally, controls as to remedies (M’Elmoyle v. Cohen, 13 Pet. [U. S.] 312; Franklin Sugar Befining Co. v. Lipowicz, 247 N. Y. 465, 469; Mertz v. Mertz, 271 N. Y. 466, 473; Restatement, Conflict of Laws, § 585). “ An agreement that all differences arising under a contract shall be submitted to arbitration relates to the law of remedies, and the law that governs remedies is the law of the forum ” wrote Judge Cardozo in his concurring opinion in Meacham v. Jamestown, F. & C. R. R. Co. (211 N. Y. 346, 352.) The rule thus expressed is well settled by other decisions (Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 124, supra; Marine Transit Corp. v. Dreyfus, 284 U. S. 263, 277; The Atlanten, 250 F. 935, 937, affd. 252 U. S. 313; Matter of Berkovitz v. Arbib & Houlberg, supra, 230 N. Y. at p. 270; Gilbert v. Burnstine, 255 N. Y. 348, 354) and text writers (2 Beale on Conflict of Laws [1935], p. 1158). It may be that, in other States in which there might be future litigation over any award here made, the law in this respect is different. But these parties solemnly promised to arbitrate their controveries in New York, and by case and statute the law of New York then was, and now is, that such an agreement is a consent of the parties thereto to the jurisdiction of the supreme court of this state to enforce such contract or submission ” (Civ. Prac. Act, § 1450 — see Matter of Zimmerman v. Cohen, 236 N. Y. 15; Gilbert v. Burnstine, supra, 255 N. Y. at p. 354).

Petitioner insists that all this has been changed by Order of Travelers v. Wolfe (331 U. S. 586). We, however, do not think that decision wipes out the old rule that remedies, including arbitration, are regulated by the law of the forum. The Wolfe decision (supra), as the Supreme Court opinions show, deals with a special situation. The majority opinion itself (at p. 607) says that the court was dealing with a comparatively narrow issue ” and states a distinction between the cause under review and M’Elmoyle v. Cohen (supra). Order of Travelers v. Wolfe (supra) was an action brought by an Ontario citizen in a South Dakota court for insurance benefits due because of the death of a South Dakota citizen whose life had been insured by the defendant order, an Ohio fraternal society of which the deceased had been a member. A statute of Ohio specifically authorized such a fraternal order to limit the time within which suits could be brought on its certificates. The defendant association had limited the time to six months after accrual, but a South Dakota statute allowed such suits to be brought within six years. The Supreme Court held, as we read the majority opinion, not that the law of the forum (South Dakota) would not, ordinarily, be applicable as to remedies, but only that, under the peculiar set-up of a mutual benefit society, an agreement by its members, expressed in a by-law provision limiting the time for instituting actions, was so much a part of the members’ mutual engagements with one another, that such a by-law would prevail over a statute, otherwise applicable, of the State wherein the suit was brought.

What we have said herein will, we think, serve as an answer to petitioner’s contention that the refusal of the permanent stay of this arbitration deprives him of the privileges and immunities he is entitled to under section 2 of article IV of the United States Constitution and his further contention that to allow the arbitration to proceed in New York will be to refuse full faith and credit to the laws of North Carolina. The pertinent North Carolina law, as we have seen, goes only so far as to deny enforcibility in its courts to such an arbitration clause, while these parties covenanted that they would, in case of dispute, go into New York State and there submit to an arbitration under the New York statutes; the New York statutes fully enforce such agreements and provide court machinery for compelling the parties to go through with their own arrangements for the settlement of their differences in a private tribunal of their own selection, rather than in a court of law.

The other objection in point of law (briefly referred to at the beginning of this opinion) which petitioner enters against the maintenance of this arbitration, is based on the fact that the agreements were, at least in form, not signed by petitioner but by W. 0. Carter, styling himself the “ Manager ” of “ South land Supply Company ”. The dispute of fact as to whether Carter was authorized so to contract, was, as we have said, set down, on petitioner’s application, for a jury trial. But petitioner goes further and says that a New York statute (Civ.' Prac. Act, § 1449) makes entirely illegal in New York an arbitration agreement not signed by the parties themselves. Section 1449 says, in part: “ A contract to arbitrate a controversy thereafter arising between the parties must be in writing.” Obviously, this contract was in writing. There is ho statutory prohibition, in our statute, of signature by an agent, nor any command that, if an agent sign, his authority must be shown in the agreement. We think petitioner’s rights are fully protected by the Special Term order sending to a jury trial the question of whether or not Carter was in fact authorized to commit petitioner to the arbitration of such differences as might arise. Much is said in the briefs concerning the second sentence, not applicable here, of section 1449, which second sentence reads: “ Every submission to arbitrate an existing controversy is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent.” The case here under review does not justify us in construing that second sentence of section 1449, or analyzing the differences in language as between the first and second sentences. We see no reason for thinking that the requirement in the first sentence of writing ” means anything more than the similar requirement in the Federal Arbitration Act (U. S. Code, tit. 9, § 2) of “ a written provision * * * to settle by arbitration a controversy thereafter arising ”.

The order should be affirmed, with costs and the certified question answered in the affirmative.

Loughran, Oh. J., Lewis, Conway, Thaoher, Dye and Fuld, JJ., concur.

Order affirmed, etc.


author: Dye, J. Field, J. Desmond, J.

text:
    Frank Tolar, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Argued November 21, 1947;
    decided May 21, 1948.

      Kenneth 8. MacAffer and Thomas F. Christie for appellant.
    I. The representations made by decedent that she had not consulted a physician and had not been treated by one were representations that she did not have a disease of the heart. (Insurance Law, § 149, subd. 4.) II. Materiality of the undisputed misrepresentations was established as a matter of law when, evidence was adduced that the application for insurance would have been rejected had it shown the facts of medical treatment and consultation for chronic endocarditis. (Ketchem & Co. v. State Mut. Life Ins. Co., 162 F. 2d 977; Oakdale Woolen Co. v. Equitable Life Assur. Soc., 66 N. Y. S. 2d 632; Reznikoff v. Equitable Life Assur. Soc., 267 App. Div. 785, 294 N. Y. 935; Peck v. Metropolitan Life Ins. Co., 38 N. Y. S. 2d 311; Guardian Life Ins. Co. of America v. Aaron, 181 Misc. 398; Sherman v. Metropolitan Life Ins. Co., 52 N. Y. S. 2d 668; Sachs v. Penn Mut. Life Ins. Co. of Philadelphia, 28 N. Y. S. 2d 1016; Herka Realty Co. v. La Salle Military Academy, 229 App. Div. 668; Zeffiro v. Profido, 265 App. Div. 185.)

      Russell G. Hunt for respondent.
    I. The evidence presented a question of fact which was properly submitted to the jury by the trial court. (Lampke v. Metropolitan Life Ins. Co., 279 N. Y. 157; Wilson v. Coulter, 29 App. Div. 85; Ward v. New York Life Ins. Co., 225 N. Y. 314; Kavanagh v. Wilson, 70 N. Y. 177; Langer v. Metropolitan Life Ins. Co., 290 N. Y. 601; DeGregorio v. Metropolitan Life Ins. Co., 255 App. Div. 725; Turczynski v. John Hancock Mut. Life Ins. Co., 245 App. Div. 903, 271 N. Y. 573; Tierney v. Travelers Ins. Co., 179 Misc. 604, 267 App. Div. 804; Nowak v. Brotherhood of American Yeomen, 249 N. Y. 78; Equitable Life Assur. Soc. v. Milman, 291 N. Y. 90; Geer v. Union Mut. Life Ins. Co., 273 N. Y. 261.) II. The trial court correctly submitted to the jury the question of the child’s knowledge.
   Dye, J.

The defendant appeals by permission from a judgment of the Appellate Division affirming a judgment in favor of plaintiff entered upon the verdict of a jury in an action to recover upon a policy of life insurance.

The testimony established that Dorothea Ann Tolar, the plaintiff’s infant daughter, then fifteen years of age, under date of July 21, 1941, made application to the defendant company for a nonmedical policy of life insurance, that is, one requiring no physical examination. A policy in the amount of $1,000 was issued, and the premium paid. On September 12,1942, one year, one month and sixteen days after the issuance of the policy, Dorothea died, the death certificate stating the cause of death as Embolism Due to Eheumatic Endocarditis ”.

The company refused to pay the proceeds to the father as designated beneficiary and, instead, tendered a return of the premium paid, alleging that the untrue negative answers to certain stated questions in the application, as to condition of heart and prior medical consultation and treatment within five years, were material representations upon which it had relied in issuing the policy and that, if it had had knowledge of the truth of the facts misrepresented by the applicant, it would not have issued the policy. The application was attached to such policy when issued and forms part of the contract (Insurance Law, § 142, subd. 1; Minsker v. John Hancock Mut. Life Ins. Co., 254 N. Y. 333).

The application contained a series of questions which fell into two categories: one, a general group designed to reveal whether or not she had an uninsurable ailment or condition, including the question: “ 16. (a) Have you ever been told that you had any heart trouble? No.”. Because of sharp conflict between Dorothea’s parents and the attending physician as to whether he had actually advised them or Dorothea as to the existence of chronic endocarditis following scarlet fever, the issue of Dorothea’s knowledge of a heart condition at the time she made the application and whether or not she concealed that fact was submitted to the jury as the real issue ” which was resolved in favor of the plaintiff. Within the limits of this narrow question the trial court quite properly submitted such issue to the jury as question of fact (Langer v. Metropolitan Life Ins. Co., 290 N. Y. 601; Ward v. New York Life Ins. Co., 225 N. Y. 314).

Such submission did not dispose of the appellant’s other defense that, having relied on the untrue answers to questions in the other category, it was entitled to a dismissal as a matter of law. The critical questions and answers as appearing in the application are quoted for convenience, viz.:

“ 6. What is your present condition of health! Good.

7. (a) When last sick?

(b) Nature of last sickness!

(c) How long sick?

Never. * * *

tt‘ 10. How much time have you lost from school or work through illness during the last five years? Give particulars.

None. * * *

“ 22. Have you ever had any * * * (b) Illness or occu-

pational disease? No.

“ 23. What clinics, hospitals, physicians, healers or other practitioners, if any, have you consulted or been treated by, within the past five years? If none, so state. None.”

It was established that the answers given to these questions were wholly and entirely untrue as it appears by uncontradicted proof that in April and May 1937, Dorothea, then eleven years of age, had scarlet fever, necessitating her absence from school for twenty-five consecutive days. During this illness she was attended by Dr. Charles E. Stott, the family physician, who found that she was suffering from chronic endocarditis. Thereafter Dorothea came to the office on several occasions for examinations required by the school authorities. and she was examined by Dr. Stott in the fall of 1937, again in September, 1938, in January, 1939, and February, 1941.

Each time he found she was a chronic endocarditis case and certified to the school authorities that because of her condition, she should be excused from school gymnastic classes and athletic activities. This proof was not controverted and being based on documentary evidence, it could not very well be. It is the effect that was in dispute, the plaintiff centering its attack on the insurer’s failure to establish that the deceased made a material misrepresentation in the application signed by her or in other words, that the burden of proof of the existence of the uninsurable condition rested on the insurer as a question of fact. The appellant insurer however, has shown by uncontroverted proof that it was its practice in approving nonmedicah applications to rely on the information furnished by the answers to the pertinent questions; that it uniformly rejected applications revealing a heart condition and that this application would have been rejected, had it disclosed scarlet fever complicated with a heart condition and that in any event, if true answers had been given, at least inquiry would have been made to determine insurability. The appellant insurer contends that on this showing it was entitled to a directed verdict as a matter of law under subdivision 4 of section 149 of the Insurance Law. The pertinent language of such section is quoted: ‘1 4. A misrepresentation that an applicant for life * * * insurance has not had previous medical treatment * * * shall be deemed, for the purpose of determining its materiality, a misrepresentation that the applicant has not had the disease, ailment or other medical impairment for which such treatment or care was given or which was discovered by any licensed medical practitioner as a result of such consultation or observation.”

When we examine the uncontroverted proof that the answers given concealed the fact of prior medical consultation which led to a discovery of the heart condition and that the practice of the company was to reject nonmedical applications containing such information, it inevitably follows that the statutory definition of materiality is met and no further proof is needed that the false answers constituted “ a misrepresentation that the applicant has not had the disease * * * which was discovered”.

We have not heretofore had occasion to construe this particular statute. Our attention has been called to the recent case of Ketchum & Co. v. State Mut. Life Assur. Co. (162 F. 2d 977), in which a policy was issued in reliance on applicant’s false answers to questions designed to show condition of health and prior medical treatment. It was established that the applicant had consulted his personal physician who, because of certain symptoms, had sent him to a heart specialist for a general examination. The latter reported back to the referring doctor that he found evidence of coronary insufficiency, Witnesses for the company established that had it known of this report the application would have been rejected and framed questions were submitted to the jury. On appeal the plaintiff’s contention that the insurer must prove the actual existence of the applicant’s ailment was rejected as leading toi consequences never intended by the Legislature in enacting subdivision 4 of section 149 for such a construction would give the applicant who concealed an advantage over those who disclosed. Learned Hand, J., discussed at length the provisions of the Hew York State statute under discussion here and its bearing on the question of materiality and came to the conclusion that upon the showing made, it could be disposed of as a question of law. In commenting on subdivision 4, he said (p. 979): •“ !■’ the ‘facts misrepresented’ were the test of ‘ materiality,’ there might be some plausibility in the plaintiff’s argument that the insurer would have to prove that the applicant had in fact had the ailment, and the applicant’s suppression of the physician’s discovery would be irrelevant, although the discovery itself might of course be in such form that it would be competent evidence on the issue. However, subdivision four does not unconditionally make the existence of the ailment the ‘ fact misrepresented ’; it makes it such only ‘ for the purpose of determining its materiality ’; that is the materiality of the misrepresentation. ’ ’

We are in accord with this interpretation of the statutory test of materiality, in fact, the language permits of no other construction. If an applicant misrepresents that he has not had “ previous medical treatment, consultation or observation ”, he is then deemed to have represented that he has not had the disease, ailment or other medical impairment for which such treatment or care was given or which was discovered by any licensed practitioner as a result of such consultation or observation.

The materiality of the applicant’s misrepresentation having thus been established as matter of law, the appellant’s motion for a directed verdict should have been granted.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Field, J.

(dissenting). With the court’s construction of the statute (Insurance Law, § 149), I am in full accord and, therefore, concur in the decision that the judgment should be reversed. I cannot, however, agree to dismissal of the complaint. The assumption that there is no issue of fact — a condition precedent to dismissal — seems to me to be refuted by consideration of the record.

As interpreted, the statute renders vital and operative the doctor’s asserted discovery that the insured had a heart condition when he examined her. Whether or no he actually did discover the existence of such a condition is undoubtedly a question of fact, and, as I read the record, that issue still remains in the case for determination by a jury. Though the doctor had written a letter that the girl had a heart ailment, that may not be said to stamp the evidence as conclusive or uncontrovertible in view of the explanation proffered by the parents as to the circumstances under which it had been written.

The judgments should be reversed and a new trial ordered.

Desmond, J.

(dissenting). Two juries, on sufficient evidence, have answered in the negative the only real question in this case: as to whether the insured knew that she suffered from a heart ailment.

We are told, however, that recovery must be denied under subdivision 4 of section 149 of the Insurance Law, which says that an applicant’s misrepresentation that she had no previous medical treatment shall be deemed “ a misrepresentation that the applicant has not had the disease [or] ailment * # * for which such treatment or care was given or which was discovered by any licensed medical practitioner as a result of such consultation or observation.” I do not believe that the Legislature intended that an applicant who was never informed of her serious ailment must, because she failed to disclose visits to a doctor for what she thought was a minor ailment, be deemed to have falsely represented tó the insurer that she never had the serious disease of the existence of which she was unaware. That would impose a drastic penalty for failure to disclose the unknown. There is no indication that the Legislature intended so unreasonable a result. I think subdivision 4 is subject to the necessarily implied condition that the applicant knew what the physician knew. Two juries have said that this applicant did not know, so she should be in the same position as one who fails, for any reason, to mention a visit to a physician for treatment of a mere cold, or similar inconsequential illness.

There have been two trials and four appeals in this suit on a small life insurance policy. As the Appellate Division wrote: “ A question of fact was presented for the jury to pass upon ” (271 App. Div. 912). The judgment should be affirmed, with costs.

Lottghran, Ch. J., Lewis and Thaoher, JJ., concur with Dye, J.; Fuld, J., dissents in opinion in which Conway, J., concurs; Desmond, J., dissents in a separate opinion.

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Philip Goodstein, Appellant.
    Argued May 12, 1947;
    decided May 22, 1947.

      Abraham Jame for appellant.

      Irving M. Gruber, Hugo V. Prueha, Sylvan D. Freeman, Nathan Siegel and Samuel Wechsler for respondent.
   Judgments reversed, complaint dismissed and fine remitted, on the ground the evidence did not establish the guilt of the defendant of the crime charged. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.