author: Van Voorhis, J.

text:
    In the Matter of the Arbitration between East India Trading Co., Inc., Respondent, and Dada Haji Ebrahim Halari, Appellant.
    Argued May 27, 1953;
    decided July 14, 1953.

      Martin E. Selman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Oh. J., Desmond, Dye and Fuld, JJ. Van Vooehis, J., dissents in opinion in which Conway and Fboessel, JJ., concur.

Van Voorhis, J.

(dissenting). The question presented by this appeal is whether an arbitration award shall be confirmed, insofar as it grants what it describes as a penalty. The controversy arises from a contract for the sale of pepper, petitioner-respondent’s contention being that appellant failed to deliver pepper called for by the contract, which contained a clause incorporating a trade association rule that in case of default, “ Arbitrators shall determine the difference between the contract price and the market value on the day of default, such difference to be payable to the Seller or to the Buyer, as the ease may be, within 10 days from the date of the Arbitration Award. The defaulting party shall pay a penalty, as determined by arbitration, of not less\ than 2% and not more than 10°fa of the market value established as of the date of the default.” (Italics supplied.)

The majority opinion, at the Appellate Division, states that the provision in the contract for a penalty may have been inserted for the reason that the difference between the contract price and the market price does not always reflect the full measure of damage. Also, it was pointed out that judicial notice can be taken of the expense of litigation and the inadequacy of ordinary costs. Therefore it is indicated that this item may be liquidated damages instead of a penalty.

Analysis of this clause demonstrates, however, that the item in question is not related by the terms of the contract to extra damage or litigation expenses. The arbitrators are not given discretion to omit such an item if they decide that loss or expense of that nature has not occurred, but it is mandatory upon them to award at least 2%. The clause states that The defaulting party shall pay a penalty ® * * of not less than 2% and not more than 10% of the market value established as of the date of the default.” (Italics supplied.) Furthermore, the percentage is directed to be computed, not upon the damage measured by appreciation in the market value above the contract price, but upon the market value alone on the day of default. These features render the percentage provision une?tforcible, as is hereafter shown. No criterion is established, no relationship is created between the extra amount which may lie awarded by the arbitrators and any loss or expense incurred by the party claiming a default. That makes it a penalty in fact as well as in name.

The arbitrators fixed the percentage at the minimum permitted by the clause in the contract. It cannot be known whether, if they had been granted the discretion, they would have eliminated this extra item altogether. The language of the contract required them to grant an additional sum of at least 2% of the market value, regardless of whether the balance of the award compensated the purchaser for all damage suffered. Moreover, in directing that the amount of the percentage shall be computed on “ the market value established as of the date of the default ”, this clause indicates on its face that the payment of this item is not based upon actual damage. The main element of damage, indeed the entire damage in the absence of special circumstances, is the difference between the contract price and the market value. Under this clause, penalties would be awarded against a defaulting seller, even if the market value at the time of default proved to be less than the contract price. The formula for computing the penalty in this contract does not take account of contract price, nor of difference between contract price and market value, and may be awarded to a purchaser who has actually been benefited by a seller’s breach of contract, which would occur in event of a drop in the market.

It is not an answer that the arbitrators are probably reasonable men, and will probably do what is right between the parties. This question is one of power. Sometimes arbitrators are unreasonable men or abuse power. Since it is forbidden to courts to go behind arbitration awards where there has been an arbitrable dispute, it cannot be ascertained by courts whether arbitrators actually did relate such a penalty to any loss or damage actually sustained. Nothing in the contract required them to do so. It could never be verified whether arbitrators have acted under such a clause because they disliked the manner in which the party to be charged has conducted himself, or desired to impose some form of discipline in regulating the industry, or from some other irrelevant reason. That would be true, even if the contract left it to the discretion of the arbitrators to decide whether any penalty should be imposed. Here, if the market dropped, but the seller was found in default, not only would the purchaser be freed from obligation to accept the goods, but would also be given an absolute right to at least 2% of the gross market value of the goods subject to the contract. Even if the market did not depreciate, a percentage must be awarded under the language of this agreement, regardless of whether the market value of the goods proves to be greater or less than the contract price, and regardless of how much greater or less, or of whether any actual damage has been sustained.

The irrelevance of the formula to any actual loss or damage is demonstrated by the manner in which the arbitrators figured the item in this case. Their award shows that they determined the market value on the date of default to be $21,840, on which they computed a penalty of 2%, amounting to $436.80, making a total of $22,276.80, from which they deducted the contract price of $10,640, leaving a difference of $11,636.80, to which they added $101.50 cost of arbitration and notary fee, totaling the amount of the award in the sum of $11,738.30. They did, to be sure, make the penalty as small as possible and still comply with the verbiage of the agreement, but the computation of the penalty is based entirely upon market value, which stands in no ratio to damage sustained.

It is pointed out in the dissenting opinion by Mr. Justice Cohit, at the Appellate Division, with ample citation of authority, that the law is settled that stipulated damages or penalties which are disproportionate to the loss sustained, or greater than the damages which may be estimated with reasonable certainty, are illegal and unenforcible, and that boards of arbitration may not give effect to void or illegal obligations.

Leaving the penalty to be fixed by arbitrators weakens rather than strengthens the position of respondent. Even if awarding the minimum percentage were not mandatory, and it had been left to the discretion of arbitrators to decide whether to award anything, their exercise of judgment is not confined to losses or expenditures which they deem actually to have been incurred. This provision purports to give to the arbitrators power to award anything from 2% to 10%, in their uncontrolled discretion. If the courts are denied power to enforce such claims as having been agreed to in terrorem, there is even greater reason for denying such power to private arbitrators. They lack punitive authority. The question involved is far reaching. What was said by the Appellate Division is true that the difference between contract and market prices does not necessarily determine, if special circumstances are present, all of the damage which parties may sustain from breach of an executory contract of sale, and, if this contract had prescribed some reasonable standard which the arbitrators were directed to follow in allowing and in computing the amount, such as that they were to measure it by whatever extra loss or damage special circumstances might have caused to result from the breach, this item would not necessarily constitute a penalty. The Appellate Division, as it seems to me, interpolated such a provision into the agreement between these parties.

Instead of there being a presumption in favor of liquidated damages, “ It has frequently been said that in determining the nature of the provision the construction is favored that a penalty rather than liquidated damages was intended ” (Clark’s New York Law of Damages, § 18, citing Ayers v. Houston, 193 App. Div. 145, 147; Hoag v. McGinnis, 22 Wend. 163, 165; Town of Wheatland v. Taylor, 29 Hun 70, 72, and Brodfeld v. Schlanger, 104 N. Y. S. 369). Although it is the law of this state, as settled by this court, that where the language used is clear and explicit to that effect, the amount is to be deemed liquidated damages when the actual damages contemplated at the time the agreement was made ‘ are in their nature uncertain and unascertainable with exactness, and may be dependent upon extrinsic considerations and circumstances, and the amount is not, on the face of the contract, out of all proportion to the probable loss ’ ” (Curtis v. Van Bergh, 161 N. Y. 47, 52), no such intention is disclosed by the agreement in the instant case. In section 20 of Clark’s New York Law of Damages, it is said that “ If the agreed sum is designated eo nomine, as a 1 penalty,’ the provision will ordinarily be construed as one for a penalty and not as liquidation of the damages, ’ ’ citing Small v. Burke (92 App. Div. 338), and Bagley v. Peddie (16 N. Y. 469, 471).

In view of the inability of courts to inquire into evidence before arbitrators having jurisdiction of a dispute, for the purpose of ascertaining what actuated them in deciding a controversy subject to arbitration, except in situations not relevant here, and the disinclination of the courts to confide power to administer punishment to private individuals, except under limited conditions, and for the other reasons above stated, the judgment appealed from should be reversed, insofar as it awards a sum in addition to the damage between the market value and contract price of the goods subject to this executoryagreement of sale. As was said by Cowen, J., in Hoag v. McGinnis (22 Wend. 163,166, supra): “ To allow of the use of penalties as damages, at the unlimited discretion of the parties, would lead to the most terrible oppression in pecuniary dealings.” This difficulty is not eliminated by leaving the matter to the discretion of arbitrators.

The judgment of modification entered upon the order of the Appellate Division should be reversed, with costs, and the judgment of the trial court eliminating the penalty should be reinstated.


source: Caselaw Access Project

license: Public Domain

text:
    Timothy F. Broderick, Plaintiff, v. Cauldwell-Wingate Co., Inc., et al., Defendants. Cauldwell-Wingate Co., Inc., Third-Party Plaintiff-Appellant, v. Brennan & Sloan, Inc., Third-Party Defendant-Respondent.
    Argued June 1, 1953;
    decided July 14, 1953.

      Victor D. Werner and Akin M. French for appellant.

      Emil V. Pils for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of James F. Lambrecht et al., Infants, by Catherine Fitzsimmons, Their Guardian ad Litem, Respondents, against George P. Monaghan, as Police Commissioner of the City of New York and Chairman of the Board of Trustees of the Police Pension Fund, et al., Appellants.
    Argued June 2, 1953;
    decided July 14, 1953.

      Denis M. Hurley, Corporation Counsel {Henry J. Shields and Seymour B. Quel of counsel), for appellants.

      Peter' Schneider and Herbert Kaufman for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis, J.


author: Per Curiam.

text:
    In the Matter of Macan Estates, Inc., Appellant, against Joseph D. McGoldrick, as Commissioner of the Temporary State Housing Rent Commission and State Rent Administrator, Respondent, and Harold Schindler et al., Interveners, Respondents.
    Argued June 3, 1953;
    decided July 14, 1953.

      Philip D. Straffin for appellant.

      Beatrice Shainswit and Robert H. Schafer for Joseph D. McGoldrick, State Rent Administrator, respondent.
   Per Curiam.

There was ample basis for the orders of respondent State Rent Administrator of April 24,1952, decreasing the rent because of the diminution of essential services promised by the landlord and that rent reduction was properly continued as long as the services in question were withheld. While it appears that the landlord resumed furnishing such services in January of 1953, it also appears that the Administrator, by order, approved and directed restoration of the rent reductions.

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

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

Order affirmed.


text:
    359 West 34th Street, Inc., et al., Appellants, v. Board of Standards and Appeals of the City of New York et al., Respondents, and Helen Horemiotes, Intervener, Respondent.
    Argued June 4, 1953;
    decided July 14, 1953.

      Robert T. Groh for appellants.

      Denis M. Hurley, Corporation Counsel {Samuel D. Johnson and Seymour B. Quel of counsel), for respondents.

      Joseph, M. Lonergan for intervener-respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Vooehis, JJ.


text:
    In the Matter of Long Island Lighting Company, Respondent, against City of Long Beach et al.,Appellants, and Benjamin Hochman, Intervener, Appellant.
    Argued April 13, 1953; reargued June 3, 1953;
    decided July 14, 1953.

      Bernard M. Bailey, Corporation Counsel (Irving J. Schultz of counsel), for appellants.

      Paxton Blair and David B. Tolins for intervener-appellant.

      Charles E. Elbert, David K. Kadane, Charles B. Pierce and Bertram D. Moll for respondent.
   Upon reargument: Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Froessel and Van Voorhis, JJ. Desmond,' Dye and Ftjld, JJ., dissent and vote to reverse the order of the Appellate Division and that of Special Term, and to reinstate the determination of the board of zoning appeals, with costs in all courts. Since there was evidence that the proposed substation would emit a hum which could be heard by those in the immediate vicinity thereof, it cannot be said, as a matter of law, that, in disallowing the permit, the zoning board of appeals acted arbitrarily and in abuse of its discretion (People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519).


text:
    The People of the State of New York, Respondent, v. John J. Cacopardo, Appellant.
    Argued May 25, 1953;
    decided July 14, 1953.

      William B. Moore for appellant.

      Miles F. McDonald, District Attorney (William I. Siegel of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Parka Corporation, Appellant, v. Michael F. Drinkhouse, Respondent.
    Argued May 26, 1953;
    decided July 14, 1953.

      Sidney M. Wittner for appellant.

      Richard H. Tunstead for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye and Fuld, JJ. Fboessel, J., dissents and votes to reverse on the dissenting opinion of Cohn, J., in the Appellate Division. Taking no part: Van Voobhis, J.


text:
    Elfrieda Lauer, Plaintiff, v. 1056 Lex Corporation, Defendant. In the Matter of Jessie Brinn, Appellant. The People of the State of New York et al., Respondents.
    Argued June 1, 1953;
    decided July 14, 1953.

      Mercedes Hoffmann for appellant.

      Nathaniel L. Goldstein, Attorney-General (Abe Wagman, Wendell P. Brown and Irving L. Rollins of counsel), for respondents.
   Orders reversed and proceeding dismissed. On this record no contempt was established within the meaning of section 750 of the Judiciary Law. No opinion.

Concur: Conway, Desmond, Ftjld and Fboessel, JJ. Lewis, Oh. J., Dye and Van Voobhis, JJ., dissent and vote to affirm.


text:
    In the Matter of Frank Lopinto, Appellant, against Ordway Tead et al., Constituting the Board of Higher Education of the City of New York, et al., Respondents.
    Argued June 2, 1953;
    decided July 14, 1953.

      Morris Weissberg and Sidney A. Fine for appellant.

      Denis M. Hurley, Corporation Counsel (Helen R. Cassidy, Seymour B. Quel and Daniel T. Scannell of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis, J.


text:
    In the Matter of Adolph Staub et al., Appellants, against Joseph D. McGoldrick, as State Rent Administrator, Respondent.
    Argued June 3, 1953;
    decided July 14, 1953.

      Benjamin J. Tarn skin for appellants.

      Beatrice Shainswit and Robert II. Schaffer for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Long Island University, Appellant and Respondent, v. Harry Tappan et al., Constituting the Town Board of the Town of Oyster Bay, Respondents, and Thomas H. Choate et al., Constituting the Village Board of Trustees of the Village of Brookville, et al., Respondents and Appellants.
    Argued June 4, 1953;
    decided July 14, 1953.

      Francis A. McGrath for appellant-respondent.

      Jackson A. Dykman, W. Shelby Coates, Ralph W. Crolly and Augustus J. Wheeler for respondents-appellants.

      John A. Morhous, Acting Town Attorney, Town of Hemp-stead, for A. Holly Patterson and others, constituting the Town Board of the Town of Hempstead, amici curiae.

      Jules B. St. Germain for Virginia Repper, on behalf of herself and all other residents and property owners in Harbor Island, Island Park, Nassau County, amicus curiae.

   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of the Arbitration between Moses Fixler et al., Appellants, and Rachel Z. Segal et al., Respondents.
    Argued May 22, 1953;
    decided July 14, 1953.

      Benjamin Weberman and Edmund A. Koblenz for appellants. ■ Moses M. Weinstein for Sepsel Seidman, respondent.

      Milton M. Karpel for Rachel Z. Segal and another, respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Oh. J., Conway, Desmond, Dye, Fund, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of the City of New Rochelle, Appellant, Relative to Acquiring Title to Real Property in Said City. Hehby J. Gucker et al., Respondents, et al., Defendants.
    Argued May 26, 1953;
    decided July 14, 1953.

      Murray G. Fuerst, Corporation Counsel (Francis S. Claps of counsel), for appellant.

      Robert H. Law, Jr., for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Yoorhis, JJ.


text:
    George P. Karonis, Appellant, v. Michael A. Palmietto et al., Defendants, and Merritt, Chapman & Scott Oorp., Respondent.
    Argued May 27, 1953;
    decided July 14, 1953.

      Monroe J. Cahn, Benjamin B. Hersh and Oliver K. King for appellant.

      Patrióle E. Gibbons, Harry H. Brown and Ralph H. Terhune for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of the Claim of Fred C. Klag, Appellant, against Drug & Chemical Club, Inc., et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued May 28, 1953;
    decided July 14, 1953.

      Abraham Marhhoff for appellant.

      Herbert F. Hastings, Jr., and Florence G. Mann for Drug & Chemical Club, Inc., and another, respondents.

      Valentine A. Meehan, Leo D. Fitzgerald and Eugene T. O’Neill for Equitable Life Assurance Society of the United States, respondent.

      Nathaniel L. Goldstein, Attorney-General (John J. Quinn, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order of the Appellate Division reversed, with costs in this court and in the Appellate Division, upon the dissenting memorandum in the Appellate Division, and matter remitted to the Workmen’s Compensation Board for further proceedings in accordance with that memorandum. No opinion.

Concur: Conway, Desmond, Fuld and Fboessel, JJ. Lewis, Ch. J., Dye and Van Voobhis, JJ., dissent and vote to affirm.


text:
    In the Matter of the Accounting of Gustavus T. Kirby et al., as Surviving Trustees under a Trust Agreement Made by Isabelle C. Kirby, Deceased, Respondents. Isabelle C. Sills et al., Appellants.
    Argued June 1, 1953;
    decided July 14, 1953.

      Forrest M. Anderson and Aileen T. Singer for appellants.

      John J. Dillon for respondents.
   Order affirmed, with costs to respondents payable out of the trusts. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Voobhis, JJ.


text:
    Sunset Motors, Inc., Respondent, v. William A. Rettmer, Appellant.
    Argued June 3, 1953;
    decided July 14, 1953.

      Harold P. Perltal for appellant.

      William Walters Lipp for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voorhis, JJ.


text:
    The People of the State of New York, Respondent, v. Henry Coger, Appellant.
    Submitted April 14, 1953;
    decided July 14, 1953.

      Frank B. Klein for appellant.

      T. Vincent Quinn, District Attorney (Benjamin J. Jacobson of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis, J.


text:
    In the Matter of the Liquidation of Yokohama Specie Bank, Ltd. Superintendent of Banks of the State of New York et al., Appellants; Eugene T. Singer, Respondent.
    Argued May 20, 1953;
    decided July 14, 1953.

      Edward Feldman for Superintendent of Banks of the State of New York, appellant.

      Irwin A. Seibel, James D. Hill and George B. Searls, Attorneys, Department of Justice, Paul V. Myron, Deputy Director of Office of Alien Property, and Myles J. Lane and J. Edward Lombard, United States Attorneys for the Southern District of New York, for Attorney General of the United States, appellant.

      Albert R. Connelly, George S. Collins, George M. Billings and Maurice Rosenberg for respondent.
   Order affirmed, with one bill of costs to respondent Singer. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis, J.


text:
    Dorita Radano, Appellant, v. Town of Huntington, Respondent.
    Argued May 26, 1953;
    decided July 14, 1953.

      Michael A. Petroccia for appellant,

      Schuyler M. Meyer and Henry M. Kidder, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond,-Dye, Ftjld, Froessel and Van Voobhis, JJ.


text:
    A. Augustus Low, as Administrator with the Will Annexed of Abbot A. Low, Deceased, Appellant, et al., Claimants, v. State of New York, Respondent.
    (Claim No. 30361.)
    Argued May 27, 1953;
    decided July 14, 1953.

      J. Theodore Cross and Francis C. Steates for appellant. Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley and Wendell P. Brown of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Voobhis, JJ.


text:
    The People of the State of New York, Respondent, v. Joseph F. O’Brien, Appellant.
    Argued June 1, 1953;
    decided July 14, 1953.

      Jacob W. Friedman for appellant.

      Miles F. McDonald, District Attorney (Aaron E. Koota and Julius Eelf and of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    The People of the State of New York, Respondent, v. Sam Amato and Joseph De Pasquale, Appellants.
    Argued June 2, 1953;
    decided July 14, 1953.

      Paul R. Shanahan for appellants.

      Jesse E. Cantor, District Attorney (Frank Del Vecchio of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Algonquin Gas Transmission Company, Respondent, v. E. W. Realty Corporation, Appellant, et al., Defendants. (And Ten Other Proceedings.)
    Submitted July 13, 1953;
    decided July 14, 1953.

      William F. Bleakley for motion.

      Charles Blank and John B. Gilleran opposed.
   Motion granted and appeals dismissed, with costs and $10 costs of motion, upon the ground that the orders do not finally determine the proceedings within the meaning of the Constitution.


text:
    Samuel Cohen et al., Appellants, v. Alfred L. Kaskel, et al., Respondents.
    Submitted July 13, 1953;
    decided July 14, 1953.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 305 N. Y. 774.]


text:
    Alice Garvin, Appellant, v. George K. Garvin et al., Respondents.
    Submitted July 13, 1953;
    decided July 14, 1953.

      Eli H. Bronstein for motion.

      Albert I. Edelman opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    In the Matter of Babylon Milk & Cream Co., Inc., Appellant, against C. Chester Du Mond, as Commissioner of Agriculture and Markets, Respondent.
    Submitted July 13, 1953;
    decided July 14, 1953.

      Robert G. Blábey and George G. Fiesinger for motion.

      Harry Rosenberg opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that there is no substantial constitutional question involved.


text:
    City of New York, Respondent, v. Thomas Lynch et al., Appellants.
    Submitted July 13, 1953;
    decided July 14, 1953.

      Denis M. Hurley, Corporation Counsel (Meyer Scheps of counsel), for motion.

      Edward A. Donnelly opposed.
   Motion denied with leave to renew on the argument.


text:
    In the Matter of the Accounting of Ramon Mosteiro, as Sole Surviving Executor of Juan A. Lopez, Deceased. Antonio R. Freire, as Ancillary Executor of Casimiro Calza, Deceased, Respondent; Carmen L. Garcia, Individually and as Administratrix of the Estate of Juan A. Lopez, Deceased, Appellant.
    Submitted July 13, 1953;
    decided July 14, 1953.
   Motion for reargument of motion to dismiss appeal denied. [See 305 N. T. 737.]


text:
    In the Matter of Julius Marcus, Appellant, against Lazarus Joseph, as Comptroller of the City of New York, Respondent.
    Submitted July 13, 1953;
    decided July 14, 1953.
   Motion to amend remittitur granted and remittitur amended by striking out the award of costs therein and inserting a provision that the order be affirmed, without costs. [See 305 N. Y. 813.]


text:
    In the Matter of the Probate of the Will of Robert Pulvermacher, Deceased. Isidore Pech et al., Respondents; Phyllis Altman et al., Appellants.
    Submitted July 13, 1953;
    decided July 14, 1953.
   Motion to amend remittitur granted and remittitur amended to read as follows: The decree entered pursuant to the order of the Appellate Division is reversed and the original decree of the Surrogate’s Court is affirmed, with costs in the Court of Appeals to all parties appearing separately and filing separate briefs payable out of the estate and with costs in the Appellate Division to appellants payable out of the estate. [See 305 N. Y. 378.]


text:
    In the Matter of the Petition of Marie Grunzfelder, as Executrix of Bertha Trautmann, Deceased, Respondent, to Settle the Account of Bertha Trautmann, as Executrix of Matthias Trautmann, Deceased. Olga Bangert et al., Appellants; Bertha Simon et al., Respondents.
    Submitted June 1, 1953;
    decided July 14, 1953.

      David I. Silverman for motion.

      Edward Devlin opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    The People of the State of New York, Respondent, v. Aaron Feld, Appellant.
    Submitted July 13, 1953;
    decided July 14, 1953.
   Motion for reargument denied. [See 305 N. Y. 322.]


text:
    The People of the State of New York, Respondent, v. Morris S. Kitzen, Appellant.
    Submitted July 13, 1953;
    decided July 14, 1953.
   Motion for reargument or, in the alternative, to amend remittitur denied. [See 305 N. Y. 756.]


text:
    Edward Rager, Appellant, v. John J. McCloskey, Individually and as Sheriff of the City of New York, et al., Respondents.
    Submitted June 1, 1953;
    decided July 14, 1953.
   Motion for reargument and to amend remittitur denied, with $10 costs and necessary printing disbursements. [See 305 N. Y. 75.]


text:
    Valerie Rubinstein, as Executrix of Andre Rubinstein, Deceased, Appellant, v. Serge Rubinstein et al., Respondents, et al., Defendants.
    Submitted July 13, 1953;
    decided July 14, 1953.
   Motion for reargument denied and stay vacated. [See 305 N. Y. 746.]


text:
    Sagobel Development Corp., Appellant, v. Sadie Cohen, Defendant, and Joseph G. Cohen, Respondent.
    Submitted July 13, 1953;
    decided July 14, 1953.

      Henry A. Friedman for motion.

      Abraham Kaplan opposed.
   Motion denied.


text:
    H. Gordon Smith, Appellant, v. William S. Kirkpatrick, Respondent.
    Submitted June 1, 1953;
    decided July 14, 1953.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 305 N. Y. 66.]


text:
    Henry Stevens, Respondent, v. Cecelia A. Stevens, Appellant, et al., Defendants.
    Submitted July 13, 1953;
    decided July 14, 1953.

      Ely Estroff for motion.

      Frank J. Durkin opposed.
   Motion denied, with $10 costs of motion, unless, within ten days from the date of service of a copy of this order upon the attorney for appellant, appellant serves and files the required undertaking on appeal and pays $10 costs, in which events motion granted.


text:
    Alois Vicherek, as President of the Czechoslovak Red Cross, an Unincorporated Association, Appellant, v. Jan Papanek et al., Respondents.
    Submitted July 13, 1953;
    decided July 14, 1953.

      Arthur D. Sporn and Nathaniel L. Goldstein, Attorney-General (Abe Wagman of counsel), for motions to dismiss appeal. Martin Popper for application to withdraw appeal.
   Application granted and, accordingly, motions to dismiss appeal denied, without costs.


author: Conway, J. Dye, J.

text:
    Sam Mencher, as Chairman of Furriers Joint Council of New York, and as Assignee of Ida Weiss and Others, et al., Appellants, v. Harry Weiss, Respondent.
    Argued May 19, 1953;
    decided July 14, 1953.

      Ralph Shapiro and Harold I.

      Cammer for appellants. I. Respondent’s. own execution of an agreement which described him as a “ member ” and which binds “ members ” individually binds him. (Metzger v. Ætna Ins. Co., 227 N. Y. 411; Pimpinello v. Swift & Co., 253 N. Y. 159; Kerfoot v. Cromwell Mound Co., 115 Ill. 520.) II. Even if respondent executed the agreement only in a representative capacity, he is individually liable because he thereby caused the corporation to represent itself as authorized to bind him as a “ member ”. (Shoenthal v. Bernstein, 276 App. Div. 200; Hernandez v. Brookdale Mills, 194 App. Div. 369; Dahlstrom v. Gemunder, 198 N. Y. 449; Prioletti v. Bowman, 194 Misc. 752, 755, 275 App. Div. 1067; Bassett v. Perkins, 65 Misc. 103; Hall v. Lauderdale, 46 N. Y. 70.) III. Only by holding respondent liable will effect be given to all parts of the agreement. (Kratzenstein v. Western Assur. Co., 116 N. Y. 54; Codman v. Adamson, 130 App. Div. 317; Esselstyn v. McDonald, 98 App. Div. 197; Standard Underground Cable Co. v. Stone, 35 App. Div. 62; Feigenbaum v. Hizsnay, 187 App. Div. 126; Electric Carriage Call & Specialty Co. v. Herman, 67 Misc. 394; Lewis v. Cable, 107 F. Supp. 196.)

      Sidney E. Katz for respondent.
    I. Respondent did not individually sign the alleged agreement and is not personally liable thereon. (Shoenthal v. Bernstein, 276 App. Div. 200; Hall v. Lauderdale, 46 N. Y. 70; Thurston v. Cornell, 38 N. Y. 281; Hernandez v. Brookdale Mills, 194 App. Div. 369.) II. The alleged contract lacked consideration as to respondent. (Schlegel Mfg. Co. v. Cooper’s Glue Factory, 231 N. Y. 459.)
   Conway, J.

The plaintiffs commenced this action to recover wages, vacation pay, and welfare and pension benefits due under a collective labor agreement entered into by the Furriers Joint Council of New York, a labor union.

Plaintiffs are, respectively, (1) the chairman of the union suing on behalf of the union as payee of the vacation pay, (2) the chairman of the union suing as assignee of the wage claims, and (3) the trustees of the health and retirement funds of the Fur Manufacturing Industry suing for the welfare and pension claims. The defendant, Harry Weiss, the president of Weiss & Schwartz Fur Corp., is sued in his individual capacity, the theory of the action being that he was bound by the agreement in that capacity. He has interposed a general denial.

There is no dispute as to the fact that the claims alleged in the complaint totaling $3,057.26 are due and owing plaintiffs. Nor is there any question but that the Weiss & Schwartz Fur Corp., of which defendant Weiss was president, was clearly obligated by the agreement to satisfy the claims. However, the corporation is insolvent and the plaintiffs seek redress from defendant Weiss. Hence, the sole issue presented by the case is the narrow one of whether, under the terms of the agreement, Weiss is bound personally and individually to plaintiffs.

The contract is contained on a multigraphed form. The prefatory clause thereof recites that it is “ made and entered into by and between Harry Weiss [defendant here], Ben Schwartz and Harry Horowitz, comprising the firm of Weiss & Schwartz Fur Corp. * * * and the Furriers Joint Council of New York # *

The body of the agreement provides that it “ * * * shall apply to and bind the parties thereto, their respective members and, if an employer member is a corporation, the individual members thereof. ’ ’

The agreement was signed at the end as follows:

Weiss & Schwabtz Fub Cobb.
Member. Habby Weiss Pres.
Member Ben Schwabtz See.
Hobowitz-Schwabtz
Working Partners
Fubbiebs Joint Council oe New Yobk,
Locals 101, 105, 110, 115, 120, 125 and 70 of the Intebnational Fub & Leather Wobkers Union of U. S. & Canada, CIO
By J. Hindus ”

The corporate name Weiss & Schwabtz Fub Cobb.” was affixed by a rubber stamp. The word Member ” is printed as part of the form and the signature of Weiss followed by the abbreviation1 ‘ Pres.” is in the handwriting of Weiss.

The parties are agreed that Weiss signed the agreement in a representative capacity and bound the corporation thereby. The plaintiffs argue, however, that he did not sign in a representative capacity alone, but in a dual capacity as president, in behalf of the corporation, and also as a “ Member ” of the corporation, i.e., individually as well.

We commence with the rule that where there is a disclosed principal-agent relationship and the contract relates to a matter of the agency, the agent will not be personally bound unless there is clear and explicit evidence of the agent’s intention to substitute or superadd his personal liability for, or to, that of his principal. . (Keskal v. Modrakowski, 249 N. Y. 406; Ell Dee Clothing Co. v. Marsh, 247 N. Y. 392; Hall v. Lauderdale, 46 N. Y. 70, 74.)

Equally important, however, is the principle that the signer of an instrument expressive of a jural act, is conclusively bound thereby. (Pimpinello v. Swift & Co., 253 N. Y. 159, 162-163.)

Weiss affixed his signature to an agreement which expressly stated that it was made and entered into by and between Harry Weiss and two others comprising the firm of Weiss & Schwartz Fur Corp. as party of the first part and the union as party of the second part. The body of the instrument, in turn, expressly stated that if the employer were a corporation, the agreement would bind the individual members thereof. The defendant argues that no definition of the word “ member ” is to be found in the agreement or otherwise in the record. That is true but, as we believe on this record, of no moment.

Weiss testified that he was neither a director nor a stockholder but merely an officer — the president. So the question presented is does the word 1 ‘ member ’ ’ include an officer who is neither a director nor a stockholder? It seems to us that Weiss has himself furnished the answer. A clause in the body of the instrument notified him that individual members of a corporation were to be bound by the agreement. With that knowledge, and, as pointed out above, he must be charged with it, he affixed his signature to the agreement on a line to the immediate left of which is the printed word “ Member ”. By so doing he acquiesced in and accepted the designation of “ Member ” of the contracting employer. Had he wished not to be so described he could have stricken out the word “ Member ”. No one will dispute that by signing but once Weiss could have bound himself in two capacities, i.e., individual and representative, had he added to his signature the words “ individually and as president ”. That is what he has effectively done by signing as president, and, at the same time, permitting the designation ‘ ‘ Member ’ ’ to be applied to him. It is as though he had added those words to his signature. It cannot be said that by writing the abbreviation for the word president after his name defendant nullified, cancelled or wrote out of the contract the descriptive word Member ”. Perhaps such an argument would have force if under the terms of the agreement defendant could be bound in one capacity only. In such case it might well be that the descriptive word “ Pres.” added by defendant to his signature would control. However, the body of the agreement states, in clear language, the intention of the parties that Weiss be bound in a dual capacity. There is no reason why that intention should not be given full effect. The word ‘ ‘ Member ’ ’ ivas not placed alongside of the signature as an afterthought. Bather, it was printed there as an integral part of the multigraphed form contract in order to accomplish that which was expressly stated in the body of the contract, viz., that if the employer were a corporation not only the corporation but also the individual members were to be bound thereby.

Those who contract with each other may write their own glossary or dictionary. Furriers may attach in their contracts a different meaning to member of a corporation than legislators. The latter have defined “ member of a corporation ” as including “ a stockholder of record having the right to vote ”. (General Corporation Law, § 3, subd. 15.) What the union wanted was some responsible person, individual or corporate, who would pay in case of breach of contract.

Further evidence that the intention of the parties was that Harry Weiss should be bound personally and individually is to be found in the fact that the prefatory clause specifically names Harry Weiss. The party of the first part is not described as the Weiss & Schwartz Fur Corp., but as Harry Weiss, Ben Schwartz and Harry Horowitz comprising that corporation. Weiss, the active president of the firm, denied being either a director or stockholder. Therefore, although he occupied the most important office in the corporation and was actively engaged therein in the conduct of the business he had no investment which he could lose through irresponsible business practices. The following testimony of Weiss is illuminating since it discloses the existence of the very situation which it was the purpose of the union to guard against and eliminate:

“ Q. Was your son a director of Weiss & Schwartz Fur Corp.? A. What son? I got three sons. What is the name?

“ Q‘. Were any of your sons a director of Weiss & Schwartz Fur Corp. ? A. I wouldn’t remember that.

“ Q. You wouldn’t remember? A. I wouldn’t remember now.

“ Q. Were any of your sons a stockholder of Weiss & Schwartz Fur Corp.? A. They were only covered up for the union purposes that we told them. Horowitz wasn’t even there as a member in the firm. This is only cover-up stuff for the union.”

That means that Weiss and Schwartz, the two men who signed the agreement, were the only ones with any interest in the corporation. Interesting, too, is the fact that Weiss said that Horowitz was not even a “member” in the firm — the Weiss & Schwartz Fur Corp. It would seem from such statement that defendant understood the meaning of the word “ member ” as used in the agreement.

There can be no doubt but that the union drafted this contract with a view to protecting its members against loss of wages, vacation pay and welfare payments by financially irresponsible corporate employers such as the Weiss & Schwartz Fur Corp., which engaged in “ cover-up stuff for the union.” The defendant, as a reasonably prudent business man with thirty-eight years’ experience in the fur industry, could not have failed to realize that fact. The body of the agreement informed him that members of a corporation were to be personally bound. The defendant signed the agreement exactly as drawn thereby indicating his willingness to be characterized as a “ Member ’ ’ and further, his willingness to assume the liability of a member as stated in the agreement. To hold otherwise would be to deny effect to and frustrate the legitimate object of the agreement.

The defendant, in arguing against the imposition of individual liability, points to the fact that he testified that at the time of the execution of the instrument he did not intend to sign in an individual capacity but only on behalf of the corporate employer. That testimony was received, over the objection of the plaintiffs, on the theory that where there is a lot of ambiguity, or something that is confusing * * * it may be permitted by parole evidence to show what the intention of the parties were.” It seems to us that the facts here did not warrant the reception of such oral evidence. As stated above the agreement quite obviously was intended to bind members of the Weiss & Schwartz Fur Corp. The defendant, chargeable with full knowledge of the union’s purpose in that regard signed the agreement as a member. That the defendant secretly or mentally intended to be bound in a representative capacity only is of no importance. [I] t is well-established contract law that in determining whether the parties possessed the necessary intention to contract, an objective test is generally to be applied. That means, simply, that the manifestation of a party’s intention rather than the actual or real intention is ordinarily controlling. Thus, in Hotchkiss v. National City Bank of New York (200 F. 287, 293, L. Hand, J., affd. 201 F. 664, affd. sub nom. National City Bank v. Hotchkiss, 231 U. S. 50), it was said: ‘ A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake, or something else of the sort. ’ (See, also, Amend v. Hurley, 293 N. Y. 587, 596; Porter v. Commercial Cas. Ins. Co., 292 N. Y. 176, 183-184.) ” (Matter of Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, 560-561.) So here, Weiss’ contention that he did not intend to be bound personally is unavailing in the face of the clear manifestation of intention by the parties that he be so bound.

Defendant further argues that the agreement lacked consideration as to him. That contention is without merit. Labor agreements such as that here are entered into between employers and employees for their mutual benefit. The union agreed not to ‘ ‘ authorize or sanction any strike during the term of this agreement ’ ’ and all disputes between the parties arising thereunder were to be adjusted within forty-eight hours through direct negotiations between the parties. In the event of their failure to adjust the dispute in that fashion it was to be submitted to arbitration. These promises by the union were certainly of benefit to the employer. That the employees may or may not have received more benefits under the agreement than they conferred on the employer is of no consequence since the law does not weigh the quantum of consideration. So long as it is something of real value in the eye of the law, whether or not the consideration is adequate to the promise is generally immaterial in the absence of fraud. The slightest consideration is sufficient to support the most onerous obligation; the inadequacy, as has been well said, is for the parties to consider at the time of making the agreement, and not for the court when it is sought to be enforced. It is competent for the parties to make whatever contracts they may please, so long as there is no fraud or deception or infringement of law.” (17 C. J. S., Contracts, § 127, pp. 474-475.) The fact that the promises of the employees ran to the corporation is sufficient to support defendant’s promise to be personally liable since it is fundamental that a benefit flowing to a third person or legal entity constitutes a sufficient consideration for the promise of another. (See 17 C. J. S., Contracts, § 89.) Moreover, it may be said that the defendant himself received benefits under the contract. As president of the corporation he was interested in seeing to it that the agreement was entered into in order that a harmonious collective bargaining relationship come into being and his position as president be a secure and profitable one. It is clear that the union was prepared to execute the agreement only if the members of the corporation were bound personally. Defendant agreed to those terms, and accepted the benefits of the agreement given in reliance upon his promise. He may not now argue that the agreement is unsupported by consideration.

The judgments should be reversed and judgment directed for plaintiffs as prayed for in the complaint, with costs in all courts.

Dye, J.

(dissenting). I dissent and vote to affirm. We all agree that the bargaining agreement executed in the name of Weiss & Schwartz Fur. Corp., a new York stock corporation, by its president, Harry Weiss, and its secretary, Ben Schwartz, was fully binding on the corporation.

We disagree as to whether the signature of Harry Weiss concededly affixed in his representative capacity as president of the corporation also had the effect of binding him personally so as to render him individually liable for the default of the corporation in meeting its contract obligation to pay its employees vacation time. The answer depends on the effect to be given the word Member ” appearing as part of the printed form contract. A majority are about to decide that the juxtaposition of the printed word11 Member ” to the corporate signature creates a personal liability.

Although the contract document supplies no definition of the term “ members ” as used therein and although the usual meaning attributed to a member of a stock corporation is a stockholder entitled to vote (General Corporation Law, § 3, subd. 15), a majority nonetheless assert that “ Furriers may attach in their contracts a different meaning to member of a corporation than legislators ’ ’; that ‘ ‘ What the union wanted was some responsible person, individual or corporate, who would pay in case of breach of contract.” (P. 6.)

On this record we must disagree with such premise. We do not deny the desirability of the salutary purpose to be served but as the court at Trial Term succinctly pointed out: “ it is the contract which is before the court that must be construed and not a contract which could have effectively done so.”

It is axiomatic that to bind one as an individual, acting in a representative capacity, the proof must be clear and convincing that he intended to assume and create such an individual obligation — it is not what the other party may have thought or expected — absent which the parties with whom he deals may look only to the principal for performance (Keskal v. Modrakowski, 249 N. Y. 406; Ell Dee Clothing Co. v. Marsh, 247 N. Y. 392). As we .long ago said, and have had no occasion to repudiate: “ When an agency is disclosed, and the contract relates to the matter of the agency, and is within the authority conferred, the agent will not be personally bound, unless upon clear and explicit evidence, of an intention to substitute, or to superadd his personal liability for, or to, that of the principal.” (Hall v. Lauderdale, 46 N. Y. 70, 74.)

Here the document on its face indicates that it was signed in a representative capacity only, bearing, as it does, the corporate name, the signature of the authorized officer and his designated title of president. The juxtaposition of the printed word ‘ ‘ Member ’ ’ appearing on the document in front of the signature does not change the situation so as to create individual liability, particularly, since the parties made no attempt to define the word ‘ ‘ member ’ ’ and in the light of the uncontradicted testimony that at the time of execution of the instrument Weiss intended to sign only on behalf of the corporation. The latter testimony, although received over objection, was entirely competent since the plaintiff was attributing significance to the word “ Member ” so as to qualify the signature as creating individual liability (Thurston v. Cornell, 38 N. Y. 281, 287; Hernandez v. Brookdale Mills, 194 App. Div. 369, 380).

The remaining point — that the agreement, when executed, had the effect of binding Weiss as a “ member ” because the corporation was acting as Ms agent — is wholly without merit under the circumstances of this case. It is true that a corporation may act as agent for an individual principal (Jones v. Gould, 200 N. Y. 18; Meyer v. Redmond, 205 N. Y. 478; Shoenthal v. Bernstein, 276 App. Div. 200). However, such rule is not available here. We are bound by the language of this contract. We may not supply deficiencies. There is nothing within its terms indicating that the Weiss & Schwartz Corp. was acting as agent for Weiss as a disclosed principal, absent which Weiss may not be held in his individual capacity.

If this be not enough, it may also be noted that no consideration whatsoever runs in favor of Harry Weiss as an individual, absent which no enforcible obligation was created.

The judgment appealed from should be affirmed, with costs.

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

Judgments reversed, etc.


author: Froessel, J.

text:
    In the Matter of Joseph P. Ryan, Individually and as President of the International Longshoremen’s Association, as President of the Atlantic Coast District of the International Longshoremen’s Association and as a Member of the Joseph P. Ryan Association, Appellant and Respondent. Frank S. Hogan, as District Attorney of New York County, Respondent and Appellant.
    Argued June 4, 1953;
    decided July 14, 1953.

      Seymour M. Waldman, Louis Waldman and Martin Markson for appellant-respondent.
    I. The Appellate Division properly held that the production of petitioner’s books and records, and working papers based thereon, by his personal accountant and agent would compel Mm to be a witness against himself in violation of Ms rights under the Constitutions of the State of New York and the United States. (Potter v. Beal, 50 F. 860.) II. The compulsory production of petitioner’s books, records and working sheets from the office of Morris J. Weinstein & Co. would violate the confidential relationship between petitioner and the accountants who were representing Mm before the Treasury Department. (Lalance & Grosjean Mfg. Co. v. Haberman Mfg. Co., 87 F. 563; Genet v. Ketchum, 62 N. Y. 626; Kellogg v. Kellogg, 6 Barb. 116; Cote v. Knickerbocker Ice Co., 160 Misc. 658; Hollien v. Kaye, 194 Misc. 821; Sibley v. Waffle, 16 N. Y. 180; Matter of Putnam, 257 N. Y. 140; People ex rel. Mooney v. Sheriff of N. Y. Co., 269 N. Y. 291.) III. The working sheets of petitioner’s personal accountant based on the ILA and Journal Account books and records may not be produced over petitioner’s objection, irrespective of the existence of any constitutional or confidential privilege as to those books and records themselves. IV. The books and records of the International Longshoremen’s Association and the Atlantic Coast District of the ILA, unincorporated associations of wMch petitioner is a member, may not be produced under subpoena where to do so would compel petitioner to be a witness against himself in violation of Ms constitutional rights. (Martin v. Curran, 303 N. Y. 276; United States v. White, 322 U. S. 694.) V. The records of the Journal Account are petitioner’s personal records and not those of the union, and hence are subject to his claim of privilege. VI. The subpoena duces tecum requiring the production of all books and records of the International Longshoremen’s Association is unreasonably broad and sweeping and constitutes an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution and section 12 of article I of the New York Constitution. (Boyd v. United States, 116 U. S. 616; Hale v. Henkel, 201 U. S. 43; Fed. Trade Comm. v. Amer. Tobacco Co., 264 U. S. 298; Jones v. Securities Comm., 298 U. S. 1; Matter of Pacific Ry. Comm., 32 F. 241; Wolf v. Colorado, 338 U. S. 25.) VII. The order of the Court of G-eneral Sessions denying petitioner’s application to quash is appealable. (People v. “ John Doe ”, 247 App. Div. 324, 272 N. Y. 473; People ex rel. Taylor v. Forbes, 143 N. Y. 219; Matter of Grand Jury, Co. of

      Kings [Reardon], 278 App. Div. 206; Matter of Brady, 69 N. Y. 215; Matter of Graham, 203 App. Div. 172; People v. Butts, 121 App. Div. 226; United States v. Rosenwasser, 145 F. 2d 1015.)

      Frank S. Hogan, District Attorney (Richard G. Denser, Irving Slonim and Harold Roland Shapiro of counsel), for respondent-appellant.
    I. The directions of the subpoenas requiring production of the union records were proper and did not violate any rights of petitioner. (United States v. White, 322 U. S. 694; Matter of Bleakley v. Schlesinger, 294 N. Y. 312; Wilson v. United States, 221 U. S. 361; People ex rel. Massarsky v. Adams, 268 App. Div. 974, 294 N. Y. 819; Martin v. Curran, 303 N. Y. 276; People v. Kuhn, 262 App. Div. 718; People ex rel. Murphy v. Crane, 80 App. Div. 202; People v. Herbert, 162 Misc. 817.) II. The directions of the Weinstein subpoena requiring production of records pertaining to petitioner’s personal affairs were proper and did not violate any rights of petitioner. (People ex rel. Mooney v. Sheriff of N. Y. Co., 269 N. Y. 291; Sibley v. Waffle, 16 N. Y. 180; Matter of Putnam, 257 N. Y. 140; Gariepy v. United States, 189 F. 2d 459; Himmelfarb v. United States, 175 F. 2d 924; Matter of Fisher, 51 F. 2d 424; Matter of King v. Ashley, 179 N. Y. 281; Matter of Cunnion, 201 N. Y. 123; Kent Jewelry Corp. v. Kiefer, 202 Misc. 778; People v. Defore, 242 N. Y. 13; People v. Ales, 247 N. Y. 351; People v. Gardner, 144 N. Y. 119.) III. The Appellate Division did not possess jurisdiction to entertain petitioner’s appeal. (People v. Gersewits, 294 N. Y. 163; People v. Reed, 276 N. Y. 5; People v. Zerillo, 200 N. Y. 443; Matter of Grand Jury, Co. of Kings [Reardon], 278 App. Div. 206; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; Matter of Turecamo Contr. Co., 260 App. Div. 253; Matter of Bancroft, 276 App. Div. 485.)
   Froessel, J.

During and prior to March, 1953, a Grand Jury of New York County was investigating the activities of petitioner, Joseph P. Byan. He is president and a member of the International Longshoremen’s Association (hereinafter referred to as ILA) and the Atlantic Coast District, a subdivision of ILA, and is also a member of the Joseph P. Byan Association. On March 9 and 10,1953, four subpoenas duces tecum were served on four different persons directing each of them to produce before the Grand Jury, “ asa witness in a criminal action prosecuted by the People of the State of New York against John Doe ”, various books, records and papers pertaining to petitioner personally, the ILA, the Atlantic Coast District, ILA Ad Journal Account, ILA New York District Council and Joseph P. Ryan Association, Inc.

Petitioner then made a “ motion ”, as he called it, instituted by an order to show cause in the Court of General Sessions, New York County, which we may assume was the court for which this Grand Jury was drawn (Code Crim. Pro., §§ 223, 225), to quash the subpoenas served upon himself, George Weinstein, his accountant, and Harry Hasselgren, as treasurer of ILA. He urged that to compel the production of the records sought by the subpoenas would be a violation of his constitutional protection against self incrimination; as to the records in the possession of his accountant, compulsory production would violate the confidential and privileged relationship existing between a person and his accountant; and that certain papers sought by the subpoena served upon his accountant and contained in a red manila envelope come within the attorney-client privilege provided for in section 353 of the Civil Practice Act.

The Court of General Sessions denied the motion except as to the papers in the red manila envelope, as to which it reserved decision, and that is not before us. The Appellate Division (one Justice dissenting) modified said order by granting petitioner’s motion with respect to the subpoena served upon the accountant “ to the extent that it calls for the production of any of Ryan’s personal papers and records and accountant’s work sheets based thereon ”, and as so modified affirmed. Cross appeals were taken to this court from the order of modification'pursuant to section 588 of the Civil Practice Act, and therefore no leave to appeal was obtained pursuant to section 520 of the Code of Criminal Procedure. In our view, these appeals do not lie, inasmuch as the order of the Court of General Sessions was not appealable.

The motion to vacate these subpoenas, which had been issued by the District Attorney pursuant to section 609 of the Code of Criminal Procedure, and were returnable before a Grand Jury investigating, and which eventually indicted, petitioner for alleged criminal acts, was as noted made in the Court of General Sessions. This is a court of limited but original criminal jurisdiction; its jurisdiction and procedure are governed by section 51 of the Code of Criminal Procedure (People ex rel. Jerome v. Court of General Sessions, 185 N. Y. 504; Code Crim. Pro., § 11, subd. 5). It is authorized to exercise “ the same powers as are conferred by this code upon county courts in other counties (Code Crim. Pro., § 51, subd. 2), and a county court is empowered to inquire by the intervention of a grand jury of all crimes committed or triable in the county ” (Code Crim. Pro., § 39, subd. 1). By section 962 of the Code of Criminal Procedure, it is provided that said code applies to criminal actions.

There being no statutory provision authorizing the court to vacate subpoenas, this motion of necessity must have been addressed to an inherent right in that criminal court to exercise such a power (see People v. Gersewitz, 294 N. Y. 163, 167, certiorari dismissed 326 U. S. 687). Thus every facet of this application was criminal in nature, and the order denying the motion to vacate the subpoenas was made in a criminal proceeding.

It is well settled that appeal is not a matter of constitutional right, and in criminal (noncapital) cases an appeal lies only by virtue of statutory authorization; such jurisdiction can never be assumed, unless a statute expressly authorizes its exercise (People v. Gersewitz, supra; People v. Reed, 276 N. Y. 5; People v. Zerillo, 200 N. Y. 443; McKane v. Durston, 153 U. S. 684, 687; Cohen and Karger, Powers of the New York Court of Appeals, p. 706). The Code of Criminal Procedure makes no provision for the review of an order denying a motion to vacate a subpoena (see Code Crim. Pro., §§ 517-519); hence neither the Appellate Division nor this court has jurisdiction, as was expressly held in Matter of Turecamo Contr. Co. (260 App. Div. 253, 255); (see, also, People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 394; Matter of Cheney v. Cheney, 255 App. Div. 302).

Petitioner, as did the Appellate Division herein, predicates a right of appeal on subdivision 2 of section 631 of the Civil Practice Act. That no right of appeal is afforded petitioner by this section is manifest. In the first place, section 1 of the Civil Practice Act provides that it1 ‘ shall apply to the civil practice in all the courts of record of the state. ’ ’ The Court of General Sessions has no civil jurisdiction. Then section 7 of the Civil Practice Act provides that in “ construing this act * * * 8. The word ‘ action ’ refers to civil action; * * * the term special proceeding to a civil special proceeding ”. Hence, “ special proceeding ” as used in section 631 of the Civil Practice Act, can have no application to this criminal case. Moreover, the instant motion was not a “ special proceeding instituted * * * pursuant to a special statutory provision ”, such as habeas corpus and contempt (Cohen and Karger, id., pp. 708-709), and as, for example, in Matter of Grand Jury, Co. of Kings [Reardon], 278 App. Div. 206, 210-211 [contempt]). Rather, as heretofore noted, petitioner brought this motion to invoke the inherent power of a court of criminal jurisdiction to vacate subpoenas. Consequently, subdivision 2 of section 631 is clearly inapplicable (Matter of Bancroft, 276 App. Div. 485, 489-490).

The cases of People v. “ John Doe (Byk) (247 App. Div. 324, affd. 272 N. Y. 473) and Matter of Di Brizzi (Proskauer) (303 N. Y. 206) are not apposite. In both of those cases the motion to vacate was made at Special Term of the Supreme Court, a court of general jurisdiction empowered to deal with both civil and criminal matters, and, since they were civil proceedings, the right to appeal was dependent upon the practice applicable to civil cases. Moreover, in neither of these cases was the precise question before us, relating to appealability, raised by the parties. In the case we are reviewing, however, petitioner chose to proceed in a court of criminal jurisdiction. By so doing he instituted a criminal proceeding, and his right to appeal is therefore dependent upon the practice applicable to criminal cases.

We have recognized that, dependent upon the jurisdiction in which a proceeding is brought, two identical proceedings may be civil or criminal in nature and consequently subject to two different sets of rules respectively determining rights of appeal, viz., as to a filiation proceeding, see Matter of Clausi (296 N. Y. 354), Feyler v. Mortimer (299 N. Y. 309), Commissioner of Public Welfare v. Simon (270 N. Y. 188); as to a juvenile delinquency proceeding, see People v. Lewis (260 N. Y. 171, appeal dismissed and certiorari denied 289 U. S. 709), People v. Fitzgerald (244 N. Y. 307); as to a proceeding to compel the support of a poor person, see Matter of Kane v. Necci (269 N. Y. 13); see, also, Cohen and Karger (id., pp. 710-711).

While the District Attorney vigorously urges the nonappealability of the order of the Court of General Sessions, he requests that we nevertheless express our views on the merits of this case. Petitioner, on the other hand, while urging appeal-ability, states that if we should decide to the contrary, it would not only be entirely improper and unwise ” to decide the merits, but also 1 ‘ wholly inconsistent with well-established principles of judicial review ”, as to which, of course, he is right (Cohen and Karger, id., pp. 9, 11).

The appeals should be dismissed, without costs, solely upon the ground that no appeal lies from the order of the Court of General Sessions, and the matter should be remitted to the Appellate Division with directions to dismiss the appeal taken to that court (Matter of Grade Crossings of New York Central R. R. Co. [Buffalo], 297 N. Y. 246).

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

Appeals dismissed, etc.


author: Van Voorhis, J. Froessel, J.

text:
    The People of the State of New York, Respondent, v. Marie H. Love, Appellant.
    Argued June 2, 1953;
    decided July 14, 1953.

      Paul T. Love for appellant.
    I. The information does not set forth facts constituting the alleged offense. (People v. Levin, 203 Misc. 480; People v. Skolnick, 200 Misc. 389, 303 N. Y. 630; Tenement House Dept. v. McDevitt, 215 N. Y. 160; People v. Payne, 71 Misc. 72; People v. James, 11 App. Div. 609; People v. Pillion, 78 Hun 74; People v. Bell, 31 N. Y. Crim. Rep. 370; People v. Carrie, 122 Misc. 753; People v. Linden Farms Milk & Cream Co., 244 App. Div. 830.) II. The motion to dismiss on the ground that the People failed to establish a prima facie case should have been granted. (People v. Smith, 299 N. Y. 707.) III. Appellant was denied due process of law. (Matter of Ryers, 10 Hun 93, 72 N. Y. 1; Matter of Fuller, 62 App. Div. 428; Sharkey v. Thurston, 268 N. Y. 123.)

      Miles F. McDonald, District Attorney (David Diamond of counsel), for respondent.
    I. The complaint sets forth sufficient facts to constitute the offense of speeding. (People v. Zielinski, 247 App. Div. 573; Dedieu v. People, 22 N. Y. 178; People v. Miller, 143 App. Div. 251, 202 N. Y. 618; People v. Wiechers, 179 N. Y. 459.) II. The People made out a prima facie case. (Angueira v. Brooklyn & Queens Tr. Corp., 263 App. Div. 43; Tamburrino v. Sterrick Delivery Corp., 241 App. Div. 221; Matter of Calfapietra v. Walsh, 183 Misc. 6.) III. Defendant was accorded a fair and impartial trial.
   Van Voorhis, J.

Appellant has been convicted in Brooklyn Traffic Court of speeding and sentenced to pay a $25 fine, or, in default of payment, to be imprisoned for not to exceed ten days. The fine was paid. The complaint lodged against appellant reads as follows:

" Edwin Leahy being duly sworn says that he 8771 is a Police Officer of the City of New York, assigned to the Mcy 2 Police Precinct. That on May 6, 1952, at about 11.25 A.M. the defendant Marie Love did operate a vehicle on Belt P’kway a public highway in the County of Kings, City and State of New York from E. 14 St. to W. 2 St. at a greater rate of speed than
Chech Square Showing Violation
If posted rate, fill in rate
Subd.
[ ] — 25 miles per hour, and no signs authorized by proper authority were posted at said location indicating a greater speed, (subdivision) a
[ ] — 10 miles per hour when turning a corner, (subdivision) ........................... b
[X] — 35 miles per hour, the rate duly posted on signs, (subdivision) ..................... a
the defendant having driven at the rate of 60 miles per hour in violation of Article 4, Section 60 of the Traffic Regulations adopted by the Traffic Commissioner of the City of New York.”

The conviction of this traffic infraction is sought to be reversed upon two grounds. The first is that section 60 of the Traffic Regulations does not limit motorists to any particular speed, if signs are posted along the street or roadway indicating that a greater speed is permitted. In order to prove a prima facie case, it is argued, the People must introduce affirmative evidence that signs were not posted permitting a greater speed. No evidence appears in this record that any signs were posted along Belt Parkway, nor that any particular maximum speed was indicated thereon. For this reason, appellant moved to dismiss at the close of the People’s case, upon the ground that the provision in the Traffic Regulations nullifying the speed limit of twenty-five miles per hour where a different speed is posted, contains a true exception which must be negatived by the People, both by pleading and proof, citing People v. Smith (299 N. Y. 707). The court thereupon said:

I am not familiar with the location of the signs, but the Court takes judicial notice that the speed on Belt Parkway between East 14th and West 2nd Street, is thirty-five miles an hour and that signs are posted along that Parkway by the Commissioner of Parks of the City of New York.

Defendant’s Counsel: Exception.”

Regardless of whether the court could have taken judicial notice of these signs, in no event was any reversible error committed in view of subdivision c of section 53 of the Rules and Regulations of the Department of Parks, applicable to Southern Parkway (of which Belt Parkway is a portion), which states: “ Bate of Speed. No person operating, driving or propelling any vehicle shall proceed at a greater than maximum or less than minimum speed indicated by signs; but in no case shall such maximum speed exceed thirty-five miles per hour.” Thus, even if no signs had been posted along this thoroughfare, the maximum rate of speed could not have been in excess of thirty-five miles per hour. No signs could have been erected there permitting a greater speed than thirty-five miles per hour. The Magistrate was required to take judicial notice of this regulation by subdivision a of section 982-8.0 of the Administrative Code of the City of New York. This regulation had the force of law, and appellant is presumed to have known that this law prohibited signs from being erected permitting greater speed in this location.

In order to escape from the inevitable conclusion that the speed limit was thirty-five miles per hour, signs or no signs, appellant makes the other point that section 60 of article 4 of the Trafiic Regulations was inapplicable to this parkway, and that she should have been charged directly with violation of subdivision c of section 53 of the Rules and Regulations of the Department of Parks, above set forth. The Trafiic Department’s Regulations are rendered applicable by section 1063 of the New York City Charter to the streets, squares and avenues in the city ” (subd. [a]). This incident occurred on a parkway. The power to make trafiic regulations for parkways has been delegated to the Commissioner of Parks (New York City Charter, ch. 21, §§ 532, 534). Nevertheless, section 54 of the Rules and Regulations of the Department of Parks incorporates the trafiic rules and regulatians of the Department of Traffic, including section 60 of article 4, which appellant was charged with having violated. Section 54 states: “ The State Vehicle and Traffic Law and the Traffic Bules and Begulations of the Department of Traffic pursuant to Chapter 46, Section 3.a of the New York City Charter are hereby established as rules and regulations of the Commissioner and shall be in effect in all parks and park streets with like effect as though set forth herein in full, and the traffic rules and regulations set forth herein are in addition to and supplement the same.”

Appellant cannot have been prejudiced by the reference in the complaint to section 60 of article 4 of the Traffic Begulations. Although a traffic infraction, with which appellant was charged, is a minor offense, below the grade of misdemeanors, such as “ have always constituted in our law a class by themselves ” (Matter of Cooley v. Wilder, 234 App. Div. 256, 259, citing Tenement House Dept. v. McDevitt, 215 N. Y. 160, 168), even the requisites of an information or indictment are merely that it shall state the offense and the act constituting the offense (People v. Grogan, 260 N. Y. 138, 142). It has been held that where an information charges violation of the wrong section of a statute, this may be disregarded as surplusage if the information fully advises the defendant of the acts relied upon to constitute the alleged violation, and if the acts charged are clearly referable to the offense of which the defendant has been convicted (People v. Adler, 174 App. Div. 301, 303, 304; People v. Stepski, 174 Misc. 1080). All that is necessary is that the information shall state the crime charged with such accuracy that the defendant may know the offense which it is claimed he has committed (People v. Olmsted, 74 Hun 323). However awkwardly an information may be drawn, if it charges an offense known to the law and states acts done by the accused that constitute it, that will be sufficient (People v. Pillion, 78 Hun 74).

The complaint in this case charges appellant with having exceeded thirty-five miles per hour by driving on Belt Parkway in the county of Kings at the rate of sixty miles per hour, in violation óf section 60 of article 4 of the Traffic Begulations adopted by the Traffic Commissioner of the City of New York. There can be no doubt that the acts constituting the offense are stated with sufficient particularity. Moreover, section 60 of article 4 of the Traffic Regulations has been, as previously stated, included by the Commissioner of Parks among the rules and regulations governing traffic on this parkway. Under the regulations of the Traffic Department, a motorist shall not exceed twenty-five miles per hour, unless signs are posted indicating a greater speed. The Park Department’s regulations merely provide that in no case shall the maximum speed indicated by signs on this thoroughfare exceed thirty-five miles per hour. Appellant could not have been misled by the failure of the complaint to refer specifically to the regulations of the Department of Parks, inasmuch as she was charged specifically with exceeding 35 miles per hour, the rate duly posted on signs ”. She cannot escape conviction on the ground that evidence is lacking concerning what rate was posted upon signs, inasmuch as an applicable regulation, having the force of law, required that the maximum speed should be the same as that which she was charged with violating. No signs could legally have been erected indicating a greater speed than this, and the presumption of regularity of official acts warrants the conclusion that no signs were posted permitting a greater speed than this regulation allowed.

Appellant was, in truth, convicted of violating section 60 of article 4, which is specified in the complaint against her, as supplemented by the regulation of the Department of Parks. Regardless of whether the court could take judicial notice of particular signs along the thoroughfare, it could and was required to take judicial notice, under subdivision a of section 982-8.0 of the Administrative Code, of the Park Department regulation that no greater speed than thirty-five miles per hour was permitted. Even if it could be said that it was the Park Department regulation which appellant was convicted of violating, no prejudice could have resulted inasmuch as the factors constituting this traffic infraction were the same whichever set of regulations applies. Consequently appellant could not have been prejudiced nor misled by the reference in the complaint to section 60 of the Traffic Regulations, instead of to subdivision c of section 53 of the Rules and Regulations of the Department of Parks. The latter provision merely prescribed the maximum rate of speed to be posted on the signs referred to in section 60 of the Traffic Regulations. There was ample to enable appellant to prepare for trial, to prevent her from again being tried for the same offense and to indicate what the charge was (People v, Schultz, 301 N. Y. 495; People v. Zambounis, 251 N. Y. 94; People v. Grogan, 260 N. Y. 138). This would be true under the higher standard required in the case of an information charging a misdemeanor, although this was not a misdemeanor. A “ complaint in the Magistrates’ Court charging disorderly conduct ”, a similar grade of offense to a traffic infraction, “ need not state the name of the crime, the 1 particular offense,’ with the exactness required of an indictment or an information ” (People v. Hipple, 263 N. Y. 242, 244; People v. Grogan, supra).

Minor defects of this nature in the complaint were waived, in any event, by failure to raise the question at the trial (People v. Wiechers, 179 N. Y. 459).

It might have been otherwise if, as held in People v. Levin (203 Misc. 480), it were necessary for the People to prove that a defendant has exceeded the speed limit on a parkway for more than one fourth of a mile. In that event, two different kinds of traffic infractions would have been involved, depending upon the establishment of different facts, and it might be considered that a complaint was defective which failed to put the defendant on notice concerning which set of facts was required to be established against him in order to prove him guilty of the offense (People v. Winston, 155 App. Div. 907; People v. Payne, 71 Misc. 72). The Magistrate in the Levin case (supra) thought that there is such a difference between the regulations of the Traffic and Park Departments, holding, by analogy with subdivision 3 of section 56 of the State Vehicle and Traffic Law, that the Rules and Regulations of the Department of Parks introduced a distance requirement which is not present in the Traffic Department Regulations. People v. Mangini (194 Misc. 615) held that there is no distance requirement on parkways, stating that the State probably retained the quarter of a mile yardstick for the reason that conditions are different upon the open highway from those in cities, where sudden bursts of speed are liable to be dangerous even if quickly moderated. The Mangini case (supra) held section 60 of the Traffic Regulations of the City of New York applicable to Grand Central Parkway, in the borough of Queens. It is true that the point decided in People v. Levin does not appear to have been raised in People v. Mangini, but it lacks substance in any event. Nothing in the Rules and Regulations of the Department of Parks expressly requires that a motorist shall have exceeded the speed limit for any prescribed distance. Such a requirement was interpolated in the Levin case, based upon the reference to the State statute in the language of section 54 of the Rules and Regulations of the Department of Parks which has been quoted above. The Magistrate considered that incorporating both the State Vehicle and Traffic Law and the traffic rules and regulations of the Department of Traffic into the Rules and Regulations of the Department of Parks was inconsistent, and that, therefore, the quarter of a mile yardstick prescribed by the State statute should prevail. Only an abstruse construction of subdivision 3 of section 56 of the Vehicle and Traffic Law could create such an inconsistency. That subdivision applies only to driving motor vehicles upon the open highway where the speed limit is fifty miles an hour, and subdivision 4 [now 5] of section 56 expressly states that the provisions of this section shall not affect ‘1 the validity of any order, ordinance, rule or regulation otherwise limiting the rate of speed ” lawfully made by any state or local agency or otherwise pursuant to laws of this state. ’ ’ It could have no effect to read a distance requirement of one fourth of a mile into the regulations of traffic that were adopted by either the Traffic or the Park Departments, and, therefore, it creates no difference in substance between the two.

The complaint fully informed defendant of the offense with which she was being charged.

The judgment should be affirmed.

Froessel, J.

(dissenting). I dissent. Defendant was charged with violation of section 60 of article 4 of the Traffic Regulations adopted by the Traffic Commissioner of the City of New York for having operated a motor vehicle on Belt Parkway in Kings County, city of New York, at a rate of speed greater than thirty-five miles per hour, the rate duly posted on signs. Section 60 of article 4 of said regulations provides that the speed limit for driving any vehicle is “ (a) 25 miles per hour, except where signs authorized by proper authority are posted indicating a greater or lesser speed ’ ’. There is no evidence in this record whether or not any signs were posted along Belt Parkway nor that any particular maximum speed was indicated.

At the close of the People’s case, after defendant had made an appropriate motion to dismiss, the Magistrate stated:

I am not familiar with the location of the signs, but the Court takes judicial notice that the speed on Belt Parkway between East 14th and West 2nd Street, is thirty-five miles an hour and that signs are posted along that Parkway by the Commissioner of Parks of the City of New York.

Defendant’s Counsel: Exception.”

Defendant was found guilty and fined $25 or, in default of payment, was given ten days’ imprisonment. Of course the Magistrate had no right to take judicial notice that signs are posted indicating a different speed than twenty-five miles per hour. Moreover, it is clear that he found defendant guilty of violating the statute referred to in the complaint. That statute contains an exception which it was the duty of the prosecutor to negative (People v. Smith, 299 N. Y. 707); since he did not do so, the People failed to prove the allegations of this complaint, and defendant was entitled to an acquittal. No reference whatsoever was made to subdivision c of section 53 of article IV of the rules and regulations, and reliance thereon by the prosecutor on appeal was merely an afterthought (People v. Costello, 305 N. Y. 63)

The judgment of conviction should be reversed and the information dismissed.

Lewis, Ch. J., Conwat, Desmond, Dte and Fuld, JJ., concur with Van Voorhis, J.; Froessel, J., dissents in opinion.

Judgment affirmed.


author: Froessel, J. Fuld, J.

text:
    Alexandra M. Blek, Plaintiff, v. Joseph A. L. Blek, Defendant. Joseph A. L. Blek, Appellant, v. Alexandra M. Blek, Respondent.
    Argued May 27, 1953;
    decided July 14, 1953.

      Joseph H. Wackerman and Emerson A. Swartz for appellant.
    I. The evidence, as a matter of law, was insufficient for submission to the jury and appellant’s motion for a directed verdict should have been granted. (Shonfeld v. Shonfeld, 260 N. Y. 477; Matter of Seymour, 113 Misc. 421; Matter of Wells, 276 App. Div. 822, 301 N. Y. 796; Matter of Dugro, 261 App. Div. 236, 287 N. Y. 595; Matter of Callahan, 142 Misc. 28, 236 App. Div. 814, 262 N. Y. 524; Boyd v. Boyd, 252 N. Y. 422; “ Castellani ” v. “ Castellani ”, 176 Misc. 763, Capaldo v. Capaldo, 263 App. Div. 984; Fidanque v. Fidanque, 276 App. Div. 543; Matter of Monty, 289 N. Y. 685; Graham v. Graham, 211 App. Div. 580; Matter of Heitman, 154 Misc. 838, 247 App. Div. 855, 272 N. Y. 533.) II. The court’s charge to the jury failed to submit the issue of the capacity of the alleged common-law wife to contract the alleged common-law marriage.

      S. Leighton Frooks and Dorothy Frooks for respondent.
    I. There were no errors in reception or exclusion of evidence, or in the court’s charge, to justify overriding the findings of the trial court and jury. (Caperna v. Williams-Bauer Corp., 184 Misc. 192; People v. Galbo, 218 N. Y. 283; Boyd v. Boyd, 252 N. Y. 422; Smith v. Smith, 273 N. Y. 380; Amend v. Hurley, 293 N. Y. 587; Roberts v. Fulmer, 301 N. Y. 277; Williams v. Guile, 117 N. Y. 343; Garippa v. Wisotsky, 305 N. Y. 571; de Baillet-Latour v. de Baillet-Latour, 301 N. Y. 428.) II. Justice requires every presumption to uphold a marriage. (Layton v. Layton, 189 Misc. 974; Schmidt v. Schmidt, 195 Misc. 366.) III. Appellant husband had the burden of proof that respondent wife’s prior marriage was then valid and subsisting. (Matter of Lewis v. Noyes Co., 278 App. Div. 222; Matter of Otts, 195 Misc. 344; Layton v. Layton, 189 Misc. 974; Spann v. Spann, 269 App. Div. 753; Cavanaugh v. Valentine, 181 Misc. 48; Chayka v. Chayka, 179 Misc. 979; Rudyk v. Rudyk, 198 Misc. 260, 278 App. Div. 837; Heller v. Heller, 172 Misc. 875, 259 App. Div. 852, 285 N. Y. 572.)
   Froessel, J.

We think that the judgment of the Appellate Division must be affirmed. In view of its affirmance of the determination of the trial court, we are precluded from weighing the evidence, as did the sole dissenting Justice in the Appellate Division. Bather the only question presented to us is whether there is any evidence to support the finding of the jury that Engelman and Georgia Hartwell had contracted a common-law marriage, which was valid and subsisting at the time of his marriage to Alexandra Blek.

There is sufficient evidence to sustain that finding. Engelman himself, after being cautioned about self incrimination, testified that he had married Georgia in the city of New York in the year 1927, without a marriage license or ceremony; that Georgia is still living; that their marriage was never dissolved; that he maintained an apartment with her; that he went to various shops, stores and other places, introducing her as his wife, and that she was known to neighbors, friends, relations, shopkeepers and others as such. This direct testimony of Engelman as to the existence of the common-law marriage was corroborated by the testimony of three other witnesses. Hilda Coopersmith testified that she had known Georgia as Engelman’s wife since 1927, that they had held each other out as husband and wife, and that she had visited them “ at least once a week ” and “ sometimes twice a week ” over a period of two or three years. Henry Coopersmith testified substantially to the same effect. Philip Streit testified that Engelman had introduced Georgia to him as his wife and that they referred to each other as husband and wife.

The foregoing testimony amply refutes the argument in the dissenting opinion herein that there is no evidence, as a matter of law, to sustain the finding of a common-law marriage. Any question as to the credibility of these witnesses was one for the jury and not for this court. (Boyd v. Boyd, 252 N. Y. 422, 429.)

Accordingly, the judgment of the Appellate Division should be affirmed, with costs.

Fuld, J.

(dissenting). In my view, the plaintiff husband, Joseph Blek, should have been granted an annulment of his marriage to defendant Alexandra in 1948, on the ground that at that time she was the undivorced wife of Morris Engelman. Alexandra’s claim that her conceded marriage ” to Engelman in 1933 was void because, when performed, he had a common-law wife, Georgia Hartwell, must fail. The record, as I read it, contains no probative evidence, of the sort required, that Engelman had entered into a common-law marriage with Georgia. That being so, he was free to marry Alexandra, and she, accordingly, was married when she became Mrs. Blek.

One of the prime requisites for establishing a common-law marriage is proof of the couple’s “ common reputation” as man and wife (see Matter of Wells, 301 N. Y. 796, affg. 276 App. Div. 822); their holding themselves out as such to a few people is not sufficient, particularly where there is compelling evidence to refute the existence of such asserted relationship. (See, e.g., Clayton v. Wardell, 4 N. Y. 230, 236; cf. Betsinger v. Chapman, 88 N. Y. 487, 499; Chamberlain v. Chamberlain, 71 N. Y. 423, 427; but cf. 7 Wigmore on Evidence [3d ed., 1940], § 2083, pp. 430-431.) “ Mere reputation,” as this court long ago said, “ is never conclusive, except when it is general, and supported by other circumstances.” (Clayton v. Wardell, supra, 4 N. Y. 230, 236.) “ Clear, consistent and convincing evidence is required to establish the fact. ’ ’ (Boyd v. Boyd, 252 N. Y. 422, 428.)

Such proof is here lacldng. There is not the slightest evidence that Engelman and Georgia were generally reputed, among their friends and relatives or in the community in which they lived, to be man and wife. The only evidence of a common-law marriage — apart from the testimony of Engelman which, even if believable, could not supply the essential proof of reputation in the community — is that they held themselves out as man and wife to the Coopersmiths who visited them at their home and who, it should be observed, witnessed Engelman’s marriage to Alexandra. The one other person who testified to the common-law relationship first met Engelman and Georgia in 1947, many years after the marriage of Engelman and Alexandra. That falls far short of proof that the parties were generally and commonly known to be married.

Not only is there no tangible evidence of a marriage between Engelman and Georgia, but the sole piece of documentary evidence bearing on the matter is to the contrary. Thus, when Engelman married Alexandra, defendant herein, he swore in his application for a marriage license that he was never previously married ”. Even the Coopersmiths, though they testified to the previous common-law marriage relationship between Engelman and Georgia, declared that, when they witnessed the EngelmanAlexandra nuptials, Engelman told them that he had been divorced. Thus, every bit of proof except Engelman’s present testimony — in which he necessarily acknowledges committing perjury when he applied for a license — indicates that, at the time of his marriage to Alexandra, Engelman was free to marry her. And the testimony of Mrs. Coopersmith that he lived in a common-law relationship with Georgia after his marriage to Alexandra — that they visited both Engelman and his bride Alexandra upon some occasions and Engelman and Georgia upon others, but not at two different addresses ” — is palpably unbelievable. In short, this is not a case involving a question of fact, of credibility, but one in which there is no evidence, as matter of law, to support the defense that Engelman and Georgia had entered into a common-law marriage.

Alexandra’s marriage to Engelman being valid, her marriage to plaintiff was necessarily void, and he is entitled to a judgment annulling his marriage to Alexandra.

I would reverse the judgment of the Appellate Division.

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

Judgment affirmed.