author: Hubbs, J. Finch, J.

text:
    In the Matter of Mayflower Farms, Inc., Appellant, against Charles H. Baldwin, as Commissioner of Agriculture and Markets of the State of New York, et al., Respondents.
    (Argued February 25, 1935;
    decided April 16, 1935.)

      Seymour Ellenbogen and Bernard Ellenbogen for appellant.

      Henry S. Manley for respondents.
   Hubbs, J.

Appellant is a domestic corporation engaged in the sale of milk at wholesale to stores in New York city. It was organized in May, 1933. In April, 1934, it made application for a milk dealer’s license. A hearing was held upon the application and it was found that appellant was engaged in selling an unadvertised brand of milk, that is, milk not having a well-advertised trade name. The application was denied for the reason that appellant had violated a price-fixing order by selling milk at the unadvertised price which was one cent per quart below the price fixed by respondent for the sale of milk having a well-advertised trade name. It was decided that as appellant was not engaged in the milk business on April 10, 1933, it was not entitled to avail itself of the one cent unadvertised price differential provided for in section 258-q of the Agriculture and Markets Law (Cons. Laws, ch. 69) which became effective April 1, 1934. Chapter 158, section 317, subdivision c, of the Laws of 1933, was substantially the same as chapter 126, section 2 (258-q), of the Laws of 1934, which reads as follows:

It shall not be unlawful for any .milk dealer who [at the time this act shall take effect is] since April tenth, nineteen hundred thirty-three has been engaged continuously in the business of purchasing and handling milk not having a well advertised trade name in a city of more than one million inhabitants to sell fluid milk in bottles to stores in such city at a price not more than one cent per quart below the price of such milk sold to stores under a well advertised trade name, and such lower price shall also apply on sales from stores to consumers; provided that in no event shall the price of such milk not having a well advertised trade name, be more than one cent per quart below the minimum price fixed [by the board] for such sales to stores in such a city.” .

The words in brackets were eliminated in the revision of the law in 1934 and the words in italics were added. The effect is to leave the date April 10th, 1933, the same in both enactments.

The sole constitutional question urged is that the provision of section 258-q allowing unadvertised dealers to sell milk at a lower price than advertised dealers, provided they were engaged in the business on April 10th, 1933, and preventing unadvertised dealers who became such subsequent to that date from selling at a lower price, is unconstitutional and void in that it violates section 1 of the 14th Amendment of the United States Constitution.

The constitutionality of the emergency legislation embodied in the milk regulation law, chapter 158 of the Laws of 1933, in various phases has been passed upon by the courts. People v. Nebbia (262 N. Y. 259; affd., 291 U. S. 502) passed upon the price fixing provision and held it to be constitutional. In Matter of Eisenberg Farms, Inc., v. Baldwin (265 N. Y. 662) this court decided that the differential clause in favor of co-operative associations which permitted them to pay to producers less than the price fixed by the Commission for milk was constitutional. The case of Borden’s Farm Products Co. v. Baldwin (7 Fed. Supp. 352; reversed and remanded to the court to make findings of fact in 293 U. S. 194, without passing upon the constitutional question) involved the question of the constitutionality of the unadvertised differential provision in its entirety. The statutory court provided for by section 266 of the Judicial Code (28 U. S. C. A. § 380) held it to be constitutional in an opinion by Judge Learned Hand.

The opinions in those cases have stated in great detail the conditions in the milk producing and marketing business in the State at and prior to the date of the enactment in question. They call attention to the fact that the statute was enacted after careful and extended investigations by committees of the Legislature into the milk business as a whole. They point out the chaotic condition existing in the business and the injurious effect produced thereby upon the farmers of the State engaged in milk production, upon the public health and general welfare.

We do not feel called upon to restate the conditions so fully stated in those opinions. We confine our discussion to the single question of whether the Legislature exceeded its power in fixing a specific date, the date when the original statute became effective, April 10, 1933, as the date after which unadvertised dealers not in business at that time were prohibited by the effect of the act from selling milk at a price less than that at which advertised dealers were required to sell.

In New York city there are four large corporations engaged in the milk business. Their brands of milk are highly advertised and well known to all retail dealers and purchasers of milk. They have come to be known as the advertised companies. There were hundreds of small dealers who sold unadvertised brands and they are known as the unadvertised dealers. They purchase their milk from about 50,000 independent farmers. When the Legislature determined upon the policy of regulating and fixing the price at which milk could be sold it was confronted by the fact that the unadvertised dealers could not successfully compete with the advertised dealers, if required to sell their unadvertised milk at the same price at which the advertised dealers sold. Prior to that time the unadvertised dealers had sold milk about one cent per quart less than the price charged by advertised dealers. The market was familiar with that condition and as a result, farmers selling milk to the dealers had become divided into two classes, one selling to the advertised dealers which owned and operated large and extensive plants in favorable localities for collecting and shipping milk, and the other, known as independent farmers, selling to the unadvertised dealers, less favorably equipped, but still, on the whole, having large sums invested in their business. It was believed that the effect of establishing a uniform price at which milk should be sold by all dealers would be to drive the unadvertised dealers out of business and work a practical confiscation of their property. • That would also deprive about 50,000 farmers of a market for their milk and leave them unprotected. At the same time it would consolidate the entire milk business of New York city in the four large advertised companies.

To meet the situation, the Legislature enacted the provision allowing a differential price in favor of the unadvertised dealers and that provision has thus far been held to be constitutional. (Borden’s Farm Products Co. v. Baldwin, supra.)

The effect of the act was to maintain the competitive position of the two classes of dealers in the same condition which existed before the enactment. Before the enactment, any person could go into the milk business at any time and sell his milk at any price at which he chose to sell it. The result had been that small dealers would attempt to break into the business by underselling which usually resulted in financial disaster to themselves and to the farmers from whom they had purchased their milk on credit. It also resulted in a general tendency to keep the price of milk paid to farmers down to a point where it demoralized the whole milk business. The primary purpose of the Legislature was to correct that condition by the establishment of a uniform fair price at which milk could be sold. We have held that the act in that respect was constitutional (People v. Nebbia, supra), although its practical effect would be, without the differential clause, to prevent new dealers from entering the field, as no new dealer could hope successfully to compete with the established advertised dealers selling well-known advertised brands.

Appellant does not question the power of the Legislature to provide for the fixing of a uniform price for the sale of milk, but argues that when it provided for fixing a uniform price and then because of the factual situation provided for a differential in favor of those unadvertised dealers then engaged in the business, it thereby in effect prohibited all others from engaging in the business as unadvertised dealers and exceeded its power. It urges that such limitation has no reasonable relation to the main purpose of the act but constitutes an arbitrary, discriminatory and unreasonable limitation which denies to it the equal protection of the law.

If the Legislature believed the limitation had a reasonable relation to the purpose which it desired to accomplish by the enactment and the facts reasonably justified that belief, then it acted within its jurisdiction and it is not for the courts to determine that it acted unwisely, although the effect of its action may deprive the appellant and others so situated from engaging in the milk business as unadvertised dealers during the emergency period specified in the act.

The Legislature in effect provided that all milk dealers must sell at a uniform price, but owing to the factual situation it also provided that those engaged in the business as unadvertised dealers at the date of the original enactment should have the benefit of the differential. The act does not prevent by its terms others from engaging in the business provided they sell at the uniform price, neither does it prevent others from becoming unadvertised dealers. It only has that effect during the period of the emergency specified in the act. We believe that the Legislature could have reasonably determined from the facts before it that new competition in the unadvertised class of dealers during the emergency period would have an injurious effect upon the result which it attempted to accomplish by the enactment.

It had before it evidence of the disastrous effect of unlimited competition in the business at the time of the enactment and prior thereto. It was attempting to stabilize the industry during a limited period only and it bad the authority to enact any law which it deemed advisable to accomplish that purpose, provided the law so enacted had a reasonable relation to that purpose.

The act not only had the effect of limiting to those engaged in the unadvertised milk business at the date of the first act the privilege of the differential, but it also prevented the large holding companies, known as advertised dealers, from dissolving those companies and permitting the subsidiary corporations thereof from engaging in the sale of milk in competition with the unadvertised dealers and enjoying the privilege of selling at one cent per quart less than the uniform price. It might reasonably anticipate such action on the part of the large holding companies. It might also reasonably foresee that such action would result in driving unadvertised dealers from the field, with great financial loss to them and to thousands of farmers who were dependent upon them for a market for their milk, thus tending to defeat the very purpose which the differential clause was enacted to prevent.

The Constitution does not secure to anyone liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people” (pp. 538, 539). If one embarks in a business which public interest demands shall be regulated, he must know regulation will ensue.” (Nebbia v. New York, 291 U. S. 502, 534.)

We believe that the provision of the statute in question has a reasonable relation to the legislative purpose which was in itself legal and that it is neither arbitrary nor discriminatory.

The order should be affirmed, with costs.

Finch, J.

(dissenting). Assuming but not deciding that the unadvertised differential provision is constitutional, is the provision limiting its application to dealers in the field “ since April 10, 1933,” reasonably adapted to the end to be accomplished, or does it go further and infringe arbitrarily and unreasonably upon the rights of the appellant and other dealers who have entered rthe business since that time and deny to them the equal protection of the laws? It is true that in a highly-organized society the liberty of each individual must yield to the public need when it appears that the interest of the public generally, as distinguished from that of a particular class, requires it, and when the means used are reasonably necessary for the accomplishment of the desired end, and are not unduly oppressive. (Lawton v. Steele, 152 U. S. 133, 137; Colon v. Lisk, 153 N. Y. 188, 196; Wright v. Hart, 182 N. Y. 330.) To sustain such legislation under the police power, the courts must be able to find that it tends in some degree to prevent an evil or to preserve public health, morals, safety or welfare. When no such tendency is disclosed and the legislation impinges upon the liberty and interferes with the property of private citizens, the duty of the courts is to declare it invalid for undue interference with the right of a person to pursue unmolested and without unreasonable regulation any lawful calling which he may choose, has always been condemned under our form of government. (Lochner v. New York, 198 U. S. 45.)

When we approach the case at bar from the standpoint of an individual who desires to enter the milk business, we find that the door is effectively closed to him. Denying the individual the price differential is as effective as a direct prohibition.

Mr. Justice Cardozo in discussing the same Milk Control Law in Hegeman Farms Corp. v. Baldwin (293 U. S. 163, 169), said: What is fixed is a minimum only. None the less, the competition among dealers is so keen that in practice the legal minimum is the maximum that the appellant [an unadvertised dealer] is able to charge.” (Words in brackets inserted.)

The basic purpose of the Milk Control Law was to afford protection and assistance to the farmers. The only claimed reason for the price differential was to prevent the price fixing provisions forcing the unadvertised dealer out of business, leaving complete control in the hands of the advertised dealers. The limitation on the number of unadvertised dealers, however, is of no benefit to the farmer, nor does it tend to preserve the status quo, or protect competitive conditions or opportunities existing just prior to the enactment of the Milk Control Law. On the contrary, this time provision limits the field of distribution for the farmer by limiting the number of independent dealers. Nor does the requirement in any way tend to prevent monopolistic control by the advertised dealers.

It is claimed that the differential in price is necessary for the preservation of the independent milk distributor for, if the price charged by all were the same, those doing business under a well-advertised name would tend to absorb the entire market. When the Legislature went further and conferred the additional benefit of a monopoly on those unadvertised dealers already in the business by preventing any newcomer from entering, they gave an advantage to the independent dealer which went far beyond the requirements of the circumstances. It transforms the provision from one aimed to prevent a monopoly by the well-advertised dealers into one creating a monopoly by the unadvertised dealers.

On the one hand, by the differential an attempt is made to preserve competitive conditions as they existed before the statute, and yet, on the other hand, it abolishes and wipes out competitive conditions by prohibiting the normal and natural emergence of new dealers into the field. This provision might have provided for one set of qualifications for milk dealers who were engaged in business prior to April 10, 1933, and another and more stringent set for those who came in thereafter. The Legislature might have provided for stricter regulations concerning different classes of milk dealers. (Watson v. Maryland, 218 U. S. 173; People v. Griswold, 213 N. Y. 92; Spector v. Building Inspector, 250 Mass. 63.) The regulations could be validly based on conditions, as for example, the grades of milk sold, and the character of distribution. To prescribe qualifications for entrance into the business or to prescribe regulations covering the different classes, is entirely different from proscribing, in effect, the right to engage in such business altogether. The record shows that the identical brand of milk sold by appellant is sold by several other independent milk dealers, competitors of appellants, to the same class of retailers in the same stores and on the same streets. Why should the appellant have to charge one cent more per quart for his milk than his competitors charge? The appellant is in the same class with these competitors. Why the unfair discrimination? Without any apparent justification it discriminates between one entering the milk business prior to April 10, 1933, and a dealer entering on the next day. One looks in vain to find a reason for this discrimination. The only reason given is that the Legislature did not wish to increase or intensify the competition against the advertised dealers by permitting new dealers to join the class of the unadvertised dealers. In other words, a monopoly was given to the unadvertised dealers so as not to increase the competition against the advertised dealers. Is it not apparent that this reason is in fact no reason at all and is only given in an attempt to justify an unjustifiable discrimination? Another reason given is that the advertised dealers might permit their subsidiaries to enter the field of the independent dealer. As the only justification for the differential against the advertised dealer is the potent sales appeal of the well-advertised name, no reason remains when the company sells the milk under another name. Thus does the monopoly given to the independent dealers stand without justification or reason.

Peculiarly applicable to the case at bar is the language which appears in Matter of Pell (171 N. Y. 48, at p. 59): The learned counsel for the appellant states a very apt illustration in his brief, as follows: ' We often hear it declared that the legislature may designate watches and carriages as a class of property and subject the same to the payment of duties and taxes, but would anyone claim that a law, declaring that all watches or carriages which were purchased prior to June 30, 1885, should be appraised and taxed, could be sustained upon the ground that such law merely designated a class of property for taxation? ’ Where the statute declares that the owners of a particular class of property, acquired at a particular time, shall be taxed, it is equivalent to naming the owners of such property; it is in no sense a general classification.”

Just as watches are watches and carriages are carriages, regardless of when acquired, so are milk dealers selling unadvertised brands of milk, milk dealers selling unadvertised brands of milk, regardless of when they entered the milk business. If this time provision is valid then a similar provision would be valid which designates more exactly those intended to be benefited. Also such a monopolistic class as named by this statute will tend continually to become narrower and thus destroy itself and tend to play more into the hands of the advertised dealers because of this very provision shutting the door absolutely against new-comers in the field. Therefore, the general public will suffer from this monopoly given to the independent dealer.

Thus the statute by reason of the insertion of this time limitation not only makes a present of a monopoly to the independent dealer, but in addition is foreign to the purpose of the law, which is alleged to be an attempt to preserve competitive conditions.

The presumption which attaches in favor of legislative action is of no avail where it is evident that the classification established by the statute is arbitrary. (Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194, 209, 210; Smith v. Cahoon, 283 U. S. 553; Southern Ry. Co. v. Greene, 216 U. S. 400, 417.)

Although the time limitation clause is unconstitutional as denying to the appellant the equal protection of the laws, this does not require that the entire provision be declared a nullity. The section contained a separability clause and it is only necessary to delete the offending clause, viz., since April 10, 1933.” With the arbitrary time limitation excised from the unadvertised differential provision, the appellant will assume its rightful place in the class of milk dealers selling unadvertised milk and be able to meet the competition if it can, not only of the well-advertised dealers, but also of the unadvertised dealers who already have an established business and. are selling the same product in the same territory as the appellant. Thus will the arbitrary, unreasonable and invalid time limitation be destroyed and at the same time the original purpose of the law, to protect the milk producer, to preserve competition and to stabilize milk prices, be promoted and safeguarded.

The order of confirmation of the Appellate Division should bereversed and the determination of therespondents should be annulled.

Lehman, Crouch and Loughran, JJ., concur with Hubbs, J.; O’Brien, J., concurs in result on the authority of People v. Nebbia (262 N. Y. 259; affd., 291 U. S. 502); Finch, J., dissents in opinion, in which Crane, Ch. J., concurs.

Order affirmed.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    In the Matter of United States Trust Company of New York, as Executor of Cornelius Vanderbilt, Deceased, et al., Appellants, against Thomas M. Lynch et al., Constituting the State Tax Commission, Respondents.

      (Argued February 25, 1935;
    decided April 16, 1935.)

      Roy C. Gasser, George S. Mittendorf, Russell L. Bradford and William H. Hayes for appellants.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), for respondents.
   Loughran, J.

The question is whether an income tax upon an increase of the value of property has been validly assessed.

Cornelius Vanderbilt died in 1899 seized of a residence in the city of New York. By his will he devised this property to his wife, Alice G. Vanderbilt, during her life, with remainders as follows: To his son Alfred G. Vanderbilt or to his son Reginald C. Vanderbilt as his wife should appoint; in default of such appointment, to the elder of them surviving her; in the event neither named son should so survive, then to the testator’s eldest daughter living at the death of his wife. If neither of my said sons or daughters shall be then living, I direct that the said property so devised to my wife for life shall be sold by my executors, or the survivors or survivor of them and the proceeds thereof divided among the then living children of my daughter Gertrude, my son Alfred G., my son Reginald C. and my daughter Gladys Moore, and in default of such grandchildren, the said property shall become and be part of my residuary estate.”

The residuary estate was held by the executors upon certain trusts. In 1912 those trusts fell in. The testator’s son Alfred G. Vanderbilt died in 1915, bis son Reginald C. Vanderbilt in 1925.

Upon the application of Alice G. Vanderbilt, the life tenant, the residence was sold in 1927 by order of the Supreme Court. The order was made as in a case where real property has heretofore been * * * devised by will * * * to a person for life, either with remainder or remainders over, to persons the identity of whom cannot be definitely ascertained until the death of the person entitled to the fife estate, or with a direction that the property be sold on the termination of the life estate, and the proceeds paid or distributed to persons the identity of whom cannot be definitely ascertained until that event, * * * [and] it appears to the satisfaction of the court that * * * such circumstances or conditions have arisen subsequent to the devise * * * that it is for the best interest of the life tenant and of the remaindermen and of all persons, if any, interested or to become interested in the proceeds of any sale of said real property, that a sale * * * should be had ” (Real Property Law, § 67; Cons. Laws, ch. 50). The final order made in that proceeding directed that the proceeds of the sale of the property be deposited with and invested by The National City Bank of New York, as trustee; and that, after payment of the net income to Alice G. Vanderbilt during her life, the principal be paid over to and among the remaindermen or other persons then entitled thereto, upon an accounting (Real Property Law, §§ 69, 71.)

The difference between the sum so directed to be held and distributed and the value of the property as of January 1, 1919, was $2,790,254.47. Upon that amount the State Tax Commission, under article 16 of the Tax Law (Cons. Laws, ch. 60), has assessed an income tax for the calendar year 1927 of $83,062.63 against “ Est. Cornelius Vanderbilt, Alice G. Vanderbilt Execx., and The National City Bank of New York, Trustee and Custodian proceeds of sale of real property.” At the date of this assessment, April 6, 1931, Alice G. Vanderbilt was the sole survivor of the executors named by the will of Cornelius Vanderbilt. Her successor as executor and The National City Bank of New York, individually and as trustee, appeal from an order confirming, on certiorari, the determination of the State Tax Commission. If the tax is collectible, the amount is not questioned.

Income taxable under article 16 of the Tax Law includes gains, profits and income derived from * * * sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; * * * or gains or profits and income derived from any source whatever, including gains or profits or income derived through estates or trusts by the beneficiaries thereof, whether as distributed or as distributable shares.” (§ 359, subd. 1.) For the purposes of this opinion, we assume that a fixed gain from a sale of real property was determinable in 1927, and that this gain was in part then derived by Alice G. Vanderbilt, as life tenant, through her participation by way of income on an increment which (less the value of her participation) was also realized for presumptive remaindermen. Without so deciding, we likewise assume that the sale as made under judicial supervision is not here to be discriminated from a private sale, and that the deposit of the resulting fund was designed as a substitute for security otherwise to have been exacted from the life tenant to assure ultimate distribution in accordance with the will of Cornelius Vanderbilt. The appellants deny any interest of his executors in his residence property after termination in 1912 of the trusts set up by the residuary clause of his will. We suppose, on the contrary, a remote contingency in which the invested fund produced by the sale would be administered under that clause. With all this granted, may this tax be sustained in the form in which it has been imposed? We are constrained to answer in the negative.

The respondents formulate their position as follows: The conceded gain arising from the sale of the property in 1927 accrued to the estate of Cornelius Vanderbilt and grew ‘ out of the ownership or use of or interest in such property.’ * * * Against the estate of Cornelius Vanderbilt, with particular reference to this portion carved out of the estate, the Tax Commission made its assessment of income tax and thereto it appended the descriptive designation of Alice G. Vanderbilt as Executrix and The National City Bank of New York as Trustee and Custodian of the proceeds of sale. * * * Through the operation of circumstances, the particular heir to whom the property or the proceeds realized from, the sale thereof will descend, will take the same, increased in the amount of $2,790,254.47, the amount of the gain realized in 1927. What conceivable reasonable objection can that particular heir offer against the diminution of the amount received by $83,062.63, the amount of the tax here involved? ”

In our opinion, this position is without warrant in the Tax Law. The statute makes no such distinction between the “ estate ” of a decedent and his personal representative. An estate ” is not a separately existing legal person. The tax upon income received by an estate (Tax Law, § 365, subd. 1-a) is paid by a fiduciary,” that is to say, by an executor (Id. § 350, subd. 5; § 365, subd. 3.) The increment here taxed was not received or realized in 1927 by an executor of Cornelius Vanderbilt. The disposition made of that increment thereafter is not now material, but the fact is that, in accordance with the will of Cornelius Vanderbilt, it passed to bis daughter Gertrude at the death of her mother, the fife beneficiary, in 1934. In short, there was no income of any estate of Cornelius Vanderbilt upon which this tax may be validly assessed against his executrix.

The appellant, The National City Bank of New York, was made a party to the assessment only in its character as depositary of income claimed to have been realized by others before its deposit with that appellant by the court. ■

The tax has not been assessed against any other person named in this record.

It follows that the order should be reversed and the determination of the State Tax Commission annulled without costs.

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

Order reversed, etc.


author: O’Brien, J.

text:
    In the Matter of the Claim of Clyde H. Whitmyre et al., Respondents, against International Business Machines Corporation et al., Appellants. State Industrial Board, Respondent.
    (Argued February 26, 1935;
    decided April 16, 1935.)

      Morris Gitlitz for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Henry Epstein of counsel), for State Industrial Board, respondent.
   O’Brien, J.

George H. Whitmyre became disabled December 9, 1930, by benzol poisoning due to the nature of his employment and on October 14, 1931, as a result of that poisoning, he died. Pursuant to the provisions of the Workmen’s Compensation Law (Cons. Laws, ch. 67, § 15, subd. 8) an award has been made to the order of the Industrial Commissioner, Special Fund.

Notice of disablement was not given to the employer within ninety days after the disablement. The only notice was the notice of death November 11, 1931, filed within thirty days after death. Appellants argue that two notices are required, one concerning disablement and another concerning death. We agree that such is the correct interpretation of the statute. Section 45, dealing with notices respecting occupational disease and death resulting from occupational disease, provides: “ The requirements as to notice as to occupational disease and death resulting therefrom shall be the same as required in section eighteen of this chapter, except that the notice shall be given to the commissioner and the employer within ninety days after the disablement.” Section 18, as amended by Laws of 1926, chapter 262, provides: Notice of an injury or death for which compensation is payable under this chapter shall be given to the commissioner and to the employer within thirty days after the accident causing such injury, and also in case of the death of the employee resulting from such injury, within thirty days after such death.” The words “ or death ” were inserted by this amendment. By force of section 18, as so amended, the claimant is compelled to give notice within thirty days after the accident causing injury, and also, when death results from the injury, another notice must be given within thirty days after death, unless, of course, accident and death are simultaneous. Our decision to the contrary in Matter of Hughes v. St. Patrick’s Cathedral (245 N. Y. 201) is based upon the earlier decision in Matter of O’Esau v. Bliss Co. (227 N. Y. 597) which arose on facts occurring prior to this amendment of section 18. A single notice respecting death resulting from injury is not enough when the purpose of notice is considered. The date of death from injury may be remote from the date of the accident which caused the injury resulting in death. The purpose of the notice of an injury is to allow timely inquiry into the facts upon which an accident causing injury and arising out of and in the course of employment is claimed and to give an opportunity to the employer to furnish prompt medical service. The purpose of the notice of death is to afford a reasonable opportunity to determine whether the death did in fact result from the accident or from some other cause. Thirty days after the respective events is prescribed by section 18 as the time for the giving of each of the notices. For the same reason the same procedure, with one exception, is ordered by section 45 in respect to notices of disablement from occupational diseases and death resulting therefrom. The notice of death is the same as the notice of death from an accident causing injury, thirty days; the notice of disablement from an occupational disease is enlarged to ninety days instead of thirty days. The purpose in making this distinction is not unreasonable. Disablement from disease frequently develops more slowly than injury from an accident and additional time may be required for determination concerning causal connection between exposure to a disease and disablement.

The order of the Appellate Division should be reversed and the claim dismissed, with costs against the State Industrial Board.

Crane, Ch. J., Lehman, Hubbs, Crouch, Loughran and Finch, JJ., concur. .

Order reversed, etc.


author: Crane, Ch. J.

text:
    Hewit Pharmacies, Inc., Appellant, v. Ætna Life Insurance Company, Respondent.
    (Argued February 28, 1935;
    decided April 16, 1935.)

      Thomas J. Mangan for appellant.

      David F. Lee for respondent.
   Crane, Ch. J.

On or about April 28, 1930, the defendant issued to the plaintiff, Hewit Pharmacies, Inc., a druggist’s policy of insurance. It provided:

In Consideration of the premium herein provided, the .¿Etna Life Insurance Company of Hartford, Connecticut (called the Company)

DOES HEREBY AGREE TO INDEMNIFY

The Assured described in the Representations hereof, within the amounts as expressed herein, Against Loss and /or Expense Arising or Resulting Directly from Claims upon the Assured for Damages on account of bodily injuries and/or death accidentally suffered or alleged to have been suffered by any person or persons in consequence of any error or mistake, made or alleged to have been made during the policy period, provided herein in preparing, compounding, dispensing, selling or delivering at or from the premises described in said Representations, any of the drugs, medicines or merchandise customarily kept for sale in drug stores, save and except claims arising by reason of:

(1) Injuries and /or death which shall be shown to have been caused by any person employed in violation of law, or caused by a failure to comply with any statute or local ordinance or in consequence of the performance of any unlawful act by the Assured or any employee of the Assured.”

The plaintiff operates a chain of retail drug stores in the various cities set forth in the representations in the policy. It also conducts a wholesale drug business under the assumed name and style of Binghamton Wholesale Drug Company. The policy only covered the retail drug store, and the wholesale business was not included. At its Water street store in the city of Binghamton the plaintiff carried on a retail and wholesale drug business in the same place, the front being used for the retail, and the rear for the wholesale trade.

Section 1743 of the Penal Law and section 1360 of the Education Law (Cons. Laws, ch. • 16) provide that it is unlawful for any person to sell at retail or furnish any of the poisons of Schedules A and B without affixing or causing to be affixed to the bottle or package a label with the name of the article and the word poison ” distinctly shown, with the name and place of business of the seller, all printed in red ink, together with the name of such-poison printed or written thereupon in plain, legible characters. The said statutes also provide that no person shall deliver any of the poisons of Schedules A or B until he has satisfied himself that the purchaser is aware of its poisonous character and that the poison is to be used for a legitimate purpose. Oil of tansy is one of the poisons enumerated in Schedule B.

Joseph Lynn, Jr., on the afternoon of June 27, 1930, came to the plaintiff’s retail drug store to purchase two ounces of the oil of tansy. Through a mistake of an employee, in believing the purchase to be made at wholesale instead of at retail, the bottle was not marked in accordance with these sections of the Penal Law and the Education Law, nor were the other provisions complied with. That evening Anna V. Lynn, the wife of Joseph, drank about an ounce of said tansy as a medicine, and died almost immediately. Oil of tansy taken in a small amount, from one to eight drops, is harmless. An ounce is four hundred and eighty drops and is fatal.

Action was brought by Lynn against the Hewit Pharmacies, Inc., and settled for a very reasonable amount. This action has been commenced by the insured to recover this loss under the policy mentioned. The defense is that the act of the employee comes within the exception, which reads as given above, “ save and except claims arising by reason of * * * or in consequence of the performance of any unlawful act by the Assured or any employee of the Assured.”

We agree with the courts below, that the giving of this bottle of tansy without the poison label was an unlawful act, committed by an employee of the assured, and comes directly within the exception. Look at it as we will, we find no escape from this conclusion. That the failure to put the label on the bottle was a mistake, which at most amounted to negligence, is no defense to a violation of the provisions of law mentioned.

What this policy does cover has been difficult for us to determine. The provisions of the Penal Law are so very broad and sweeping that almost every act of negligence resulting in the sale of a drug wrongly marked or of a different article than that called for is an unlawful act. Section 1742 reads: Omitting to label drugs, or labeling them wrongly. Any person, who, in putting up any drug, medicine, or food or preparation used in medical practice, or making up any prescription, or filling any order for drugs, medicines, food or preparation puts any ■untrue label, stamp or other designation of contents upon any box, bottle or other package containing a drug, medicine, food or preparation used in medical practice, or substitutes or dispenses a different article for or in lieu of any article prescribed, ordered, or demanded, or puts up a greater or less quantity of any ingredient specified in any such prescription, order or demand than that prescribed, ordered, or demanded, or otherwise deviates from the terms of the prescription, order, or demand by substituting one drug for another, is guilty of a misdemeanor; provided, however, that, except in the case of physicians’ prescriptions, nothing herein contained shall be deemed or construed to prevent or impair or in any manner affect the right of an apothecary, druggist, pharmacist or other person to recommend the purchase of an article other than that ordered, required or demanded, but of a similar nature, or to -sell such other article in place or in lieu of an article ordered, required or demanded, with the knowledge and consent of the purchaser.”

The Hewit Pharmacies, Inc., assumed that this policy covered, as it stated, any loss occasioned in consequence of any error or mistake in preparing, compounding, dispensing and selling any drug or medicine customarily kept for sale in drug stores. This agreement to indemnify for such a loss was in fact meaningless. As far as we can see, it had no effect; it covered no such act as was stated, because the exception nullified it; what the insurance company gave with one hand it took away with the other; it received its premium without providing the security. The exception excluded from the coverage the performance of any unlawful act, and the Penal Law makes any mistake, or error in selling a drug, a misdemeanor. Dispensing a different article for or in lieu of the article prescribed or demanded, or putting up a greater or less quantity of any ingredient than that prescribed, or deviating from the terms of the prescription or order by substituting another drug, seems broad enough to cover any mistake made in selling drugs.

We mention these matters not in the way of criticism or reflection upon the defendant insurance company. Their policy no doubt was framed to cover other States where the Penal Law may not be so rigid. We refer to these matters in order that the law may be so amended as to afford better protection under casualty insurance policies.

The judgment appealed from should be affirmed, with costs.

Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgment affirmed.


author: Finch, J.

text:
    Carroll McCreary Co., Inc., Plaintiff, v. The People of the State of New York et al., Defendants; Brady Concrete Corporation et al., Respondents, and James McWilliams, Inc., et al., Appellants.
    (Argued March 11, 1935;
    decided April 16, 1935.)

      Leo T. Kissam and J. Francis Hayden for appellants.

      Howard Henig and Samuel B. Stewart, Jr., for Brady Concrete Corporation et al., respondents.

      Louis Salant, Herman Asher and Joseph J. Cunningham for Morell Co., Inc., respondent.

      M. M. Leichter and John L. Ketcham for New York Roofing Co. et al., respondents.

      Samuel Gottesman, M. Maldwin Fertig and Alfred A. Walter for Indemnity Insurance Company of North America, respondent.

      Albert Foreman and M. Carl Levine for McCartney Contracting Co., Inc., respondent.
   Finch, J.

From a judgment of the Supreme Court, modified in the Appellate Division, the defend ants-appellants James McWilliams, Inc., the general contractor, and the National Surety Corporation, which bonded the liens in a mechanics’ lien action, appeal to this court.

The judgments appealed from must be affirmed, and the reasons therefor are sufficiently obvious upon an inspection of the record and briefs to dispense with reciting such reasons here, except the so-called Brady lien, as to which the judgment against the National Surety Corporation must be reversed and a new trial granted. To present this latter question, few facts need be stated.

Brady Concrete Corporation, a direct subcontractor of McWilliams, after having filed a notice of lien, executed and delivered to McWilliams a formal release and waiver of the right to file any notice of lien on account of labor performed or materials furnished under the McWilliams contract. This release and waiver was formal and was signed and sealed in the name of the Brady Concrete Corporation by its secretary and treasurer. It recites as consideration an agreement entered into between the Brady Concrete Corporation and James McWilliams, Incorporated, bearing even date with the release. This agreement provides, among other things, for specific arbitration proceedings to be had on five days’ notice by either party without regard to the final due date fixed in the original contract, and that McWilliams will pay to Brady any sums found due upon the arbitration within fifteen days after such finding is made. Under the main contract the balance would not become payable until sixty days after final completion and acceptance of the work and the parties could not arbitrate the dispute until the amount was due. It is further agreed in the supplemental contract that McWilliams shall pay the sum of $9,230 upon delivery of the release and waiver by Brady and that $7,810.90 of the sum due shall be paid ten days after the receipt by McWilliams of final payment from the State of New York.

It thus appears by the terms of this supplemental agreement that there was consideration for the agreement to waive the lien. The appellants urge, however, that any question of consideration is immaterial, since the release and waiver was under seal and, therefore, as an executed instrument, consideration was conclusively presumed (Stiebel v. Grosberg, 202 N. Y. 266), as it is provided that only upon executory instruments is a seal merely presumptive evidence of a sufficient consideration 'which may be rebutted as if the instrument was not sealed. (Civ. Prac. Act, § 342.) This court, however, has said: “ Though an executed deed or conveyance in trust requires no consideration * * * yet, if made for a promised consideration which fails, the conveyance may be revoked.” (Hutchison v. Ross, 262 N. Y. 381, 397.) Evidence as to a failure of consideration was, therefore, admissible. Apparently the learned trial court found that the only consideration was a payment by McWilliams of a balance admittedly due and an arbitration of matters in dispute, neither of which would constitute consideration, since there is no consideration in promising to pay a sum already due and the original contract had already provided for arbitration. As already noted, however, the supplemental agreement, by providing for earlier payments than under the original contract and in other ways, upon its face furnished ample consideration.

As long as the supplemental agreement had been made, binding McWilliams over and above the terms of the original contract, and such agreement was recited in the waiver of lien as the express consideration, there was sufficient consideration in the execution and delivery of the supplemental contract, until there was shown a failure of consideration by McWilliams’ refusal to perform this supplemental agreement. (Hutchison v. Ross, supra, at p. 397.) Performance under the supplemental agreement on McWilliams’ part could only be shown by evidence dehors the contract. The introduction of such evidence, however, the court at all times refused- to permit. McWilliams should have been allowed to show that he offered to continue with the arbitration proceeding but that Brady defaulted and refused to continue, so that there was no failure of consideration on the part of McWilliams. It was error, therefore, for the court to find at Trial Term that there was a lack of consideration which invalidated the waiver and release.

The invalidity of the Brady claim as a hen does not affect, however, his right to a personal judgment against the general contractor (Cummings v. Broadway-94th Street Realty Co., 233 N. Y. 407); nor does the waiver of hen on the part of Brady affect the right to impose a hen on the part of the Kalman Steel Corporation and the Indemnity Insurance Company of North America. Even though Brady has vahdly agreed to waive its hen, this cannot deprive the subcontractors of their statutory right to assert a lien. (North American Iron Works, Inc., v. De Kimpe, Inc., 232 App. Div. 579.)

It follows that the judgment appealed from, so far as it apphes to the defendant-appellant National Surety Corporation in connection with the Brady lien should be reversed and a new trial granted, with costs to the said appellant to abide the event; otherwise, the judgment should be affirmed, with costs.

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

Judgment accordingly.


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

text:
    Fred E. Barker, Respondent, v. John R. Conley et al., Appellants.
    (Argued February 25, 1935;
    decided April 16, 1935.)

      Esmond D. Murphy for appellants.

      Glen R. Bedenkapp for respondent.
   Crane, Ch. J.

The plaintiff sued in negligence and the defendants moved to dismiss on affidavits setting up a general release for a considerable sum of money paid. The plaintiff said in replying affidavits that he had been deceived into believing that he would get more money and that the paper he signed was not the end of the matter — a release. A question has arisen on the practice under rule 108, of sending these questions of fact to a jury on the affidavits instead of an answer.

Former section 421 of the Civil Practice Act read: “ Issues defined and enumerated. The issues, for the purpose of a trial, are those only which are presented by the pleadings. An issue arises where a fact or a conclusion of law is maintained by one party and controverted by the other. Issues are of two kinds: 1. Of law; and 2. Of fact.”

Chapter 372 of the Laws of 1921 repealed section 421. Senate bill No. 858 in section 6 contained in brackets the following, “[Sec. 284, 421 and 1444, as renumbered 1482 of the C. P. A. are repealed to agree with Civil Practice Rules 106-111].”

The Civil Practice Rules adopted September 21, 1920, carry this note in the printed volume: “ The rules' embraced in this pamphlet were adopted by the Convention to Consider and Adopt Rules of Civil Practice on the 21st day of September, 1920, subject, however, to such amendment as might be deemed necessary after the action of the Legislature on the suggestions of the Committee to Consider and Present Amendments to the Civil Practice Act.”

Rule 108 was then in the exact language it is today. In part it is, * * * or it may direct that the questions of fact, which shall be clearly and succinctly stated in the order, be tried by a jury or referee, the findings of which shall be reported to the court for its action; or it may overrule the objections, and in its discretion may allow the same facts to be alleged in the answer as a defense. * *

In Herzog v. Brown (217 App. Div. 402 [First Dept.]) Wagner, J., approved this practice. In an action on contract, the affidavits on a motion to dismiss set up the Statute of Frauds. The disputed question of fact the court held should be tried by a jury as provided in rule 108.” The order was affirmed by this court (243 N. Y. 599, 600), although in answering the certified question, Does the answering affidavit in opposition to said motion, state facts sufficient to raise an issue of fact,” etc., we apparently did not consider the question of practice.

In Mohamed v. Unifruitco S. S. Co. (223 App. Div. 791 [Second Dept.]) the question of a release was submitted to a jury under this rule 108. (Also Perloff v. Kelmenson, 226 App. Div. 696 [Second Dept.]; Galanti v. Brady & Gioe, Inc., 211 App. Div. 858 [Second Dept.]; and Rizzuto v. United States Shipping Bd., 213 App. Div. 326 [same department].)

Clark on Code Pleading (Ch. 8, p. 386, § 88) says of Motions Raising Issues of Fact,” The procedure seems highly desirable. It is thus possible to raise in short 'and simple form issues on matters of a continually recurring sort, where usually the facts are clear and the questions are usually of law only.”

Carmody’s New York Practice (Vol. 3, pp. 2295 et seq., § 1057) refers to this practice under the rules. On the other hand, Prof. Alden’s edition of Abbott’s Practice and Forms points out the extreme caution which should be used in sending questions of fact to a jury when they are raised in affidavits instead of by answer in the manner provided by section 422 of the Civil Practice Act and the following sections. (3d ed. [1925], vol. 2, pp. 1719, 1720.)

The orders appealed from must be modified, however, because the question to be submitted to the jury does not comply with the rule. This must be clearly and succinctly stated. Every question of fact cannot thus be submitted; it must be one which if decided in favor of the defendants ends the litigation. For this purpose was the Practice Act amended and the rule made. To terminate lawsuits by the speedy disposition of questions in bar of recovery was the end in view. A general release, the Statute of Limitations or of Frauds are instances, if found to apply, which end all further proceedings.

The justice at Special Term denied the motion to dismiss the complaint because of a general release, with ten dollars costs. This he might have done if he had stopped here, because a question of fact had arisen on the affidavits. He went further, however, and ordered a separate trial of the following questions of fact, viz.:

Whether the plaintiff at the time of executing the release was aware of its nature and effect;
“ Whether plaintiff was induced to execute and deliver said release in reliance upon false and fraudulent representations made by the defendants to the effect that by the execution and delivery of the same he was not releasing his cause of action against said defendants; and
Whether said plaintiff executed said release under duress.”

The Appellate Division modified the order by reframing the questions to read: Ordered that a separate trial by jury be had of the issue arising upon the defense of release,” and directing that no decision of the motion be made until after the verdict of the jury. This, as above stated, was not a compliance with the rule. No question of fact has been clearly and succinctly stated in this order. The issue is submitted to the jury. What is the issue? It must be stated in the order, not left to be determined by reading the affidavits. The order must state the questions of fact. From the order of the Appellate Division we cannot tell what the “ issue arising upon the defense of release ” is. We must look to the affidavit for this and then minds may and have differed as to that issue. The order must state the fact to be decided and when decided it must be decisive one way or the other. Both courts were partly in error. The only question which could be submitted was the fraud, if any, in procuring the release. The Special Term judge had it right in his second question submitted, Was the plaintiff induced to execute and deliver said release in reliance upon the false and fraudulent representations made by the defendant to the effect that by the execution and delivery of the same he was not releasing his cause of action against said defendants? This is the one and only question. No duress was shown and the plaintiff’s ignorance of what he was signing is immaterial unless he was deceived in doing so. (Metzger v. Ætna Ins. Co., 227 N. Y. 411; Pimpinello v. Swift & Co., 253 N. Y. 159.)

The orders should be modified in accordance with this opinion, and as so modified affirmed, without costs.

The questions certified are answered as follows:

1. Do the plaintiff’s answering affidavits create a question of fact to be submitted to a jury? ” We answer, “ Yes.”
“ 2. Did this court err, as matter of law, in making its order of October 3, 1934? ” We answer, Yes, in the manner of reframing the questions as herein stated.”

Lehman, J.

(dissenting in part). To defeat a motion to dismiss the complaint under rule 107 on the ground that the cause of action has been released, the plaintiff has filed affidavits in which he admits the execution of the release and the payment of the stipulated consideration, but asserts in effect that he was informed and believed that after signing the paper he would get more money. The assertion is vague, in fact wholly made up of mere conclusions — so too are other assertions which might be read as intended to show that he signed the release without understanding its effect and under some kind of duress. As Chief Judge Crane points out, minds may and have differed ” as to what “ issue ” is raised by the answering affidavits. The reason why minds may and have differed as to that is that even the plaintiff has not formulated the issue he desires to raise, other than by claim that the release is open to attack. If the affidavits were to be tested in the manner in which a pleading, devised as an attack, would be tested, then it is clear beyond possibility of dispute that the affidavits would be insufficient. Nowhere in the affidavits can be found a direct statement that the plaintiff was deceived by any fraudulent misrepresentation of defendants’ agent that the paper was other than a release, and nowhere is there an offer to return the consideration paid.

It may be urged that the rules do not contemplate that affidavits made upon a motion should not be subjected to the same test as a formal pleading. That is, I think, true. By a motion made under rule 107 before answer is served, a defendant asserts that the plaintiff has no cause of action which he should be called upon to defend or which the courts should be called upon to determine. The procedure is intended in the proper case, to provide summary action where formal litigation would be futile. The purpose of the rule would be to a great extent thwarted if, in such procedure, the formulation by affidavit of possible questions of fact were required with the same precision as may be required in formal pleadings. None the less, the affidavits must state sufficient facts to enable the court to pass intelligently upon the motion, according to each party the rights to which that party is entitled.

What the court must pass upon is only whether the complaint should be summarily dismissed or should be permitted to proceed to trial. Under rule 107 a defendant must present an affidavit stating facts tending to show ” that one of the objections enumerated in the rule bars the maintenance of the action. If the affidavit is sufficient for that purpose, then the plaintiff, to defeat the motion, must present affidavits denying the facts alleged by the defendant or shall state facts tending to obviate the objection.” (Rule 108.) If it conclusively appears from undenied allegations of fact that one of the objections enumerated in rule 107 exists, then the complaint should be dismissed. If the plaintiff asserts that the bar to recovery as alleged in the moving papers does not in fact exist, such dispute must be determined in a proper forum and in accordance with due process of law. Rule 108 gives some discretion to the court in that regard. It may direct that the questions of fact be tried by a jury or referee, or it may overrule the objections and allow the same facts to be alleged in the answer as a defense.

If the court directs trial before a jury or referee, the questions of fact to be tried must be clearly and succinctly stated in the order. Then, obviously, the plaintiff’s affidavits filed in opposition to the motion to dismiss the complaint must show what relevant facts are disputed. A denial of the facts alleged in the moving affidavits will, ordinarily, suffice for that purpose. That is not necessarily true where, as in this case, there is nó denial of such facts, but a statement of other facts tending to obviate the objection.” That is not true here, I think, even though we should find in the language of the plaintiff’s affidavit an intention to allege that there was such fraud as to induce the plaintiff to believe that he was signing a receipt, or some paper other than a release. Such fraud “ in the factum ” might, it is true, permit the plaintiff to recover upon his cause of action without offering to return the money received when the instrument was signed; but quite clearly, even if the plaintiff did intend to allege fraud in the factum,” he did not intend to confine his allegations to such fraud. All that the plaintiff attempted, and all that was required of him under the rules, to defeat the motion for summary dismissal of the complaint, was to state facts which in some manner tend to obviate the objection. So the justice at Special Term construed the affidavit and so, apparently, did the Appellate Division. Now this court proposes, as I understand, to limit the question to be tried to fraud in the factum. If that is decided against the plaintiff, then the plaintiff will be forever barred from litigating questions of fact appearing with even greater clarity in the affidavits; viz., fraud in the treaty and failure to understand the nature and effect of the paper he signed.

True, such facts if established would give rise at most to a right to rescind upon the return of the consideration paid by the defendants, and the plaintiff has not offered to return that consideration or sought rescission beforé, the action was brought. If the release is pleaded as a bar in the answer, then the plaintiff might perhaps still show facts which would justify the invocation of the equitable powers of the court for its rescission even at this late date, and at least prevent an adjudication on the merits of its validity. Now the order as modified precludes the plaintiff from objecting to the validity of the release, except on one narrow ground, and compels the defendant to litigate before a jury a question of fact which the court has formulated as a conclusion from allegations which are themselves at most merely vague conclusions. The plaintiff’s affidavits do not in my opinion create a question of fact to be submitted to the jury and were not intended to do so.

The affidavits do, none the less, show that there is a dispute as to the validity of the release which the plaintiff should have opportunity to present in an appropriate forum. Since no pleadings have been served in regard to that release, the issues in the dispute are not yet formulated. Thus 1 -agree with Chief Judge Crane that the order of Special Term would have been proper if it had merely denied the motion to dismiss the complaint and had permitted the defendants to allege the release in the answer. It would have been correct, not because a question of fact was raised by the affidavits, but because the affidavits show that some dispute of fact probably exists which should be litigated in the action.

The order of the Appellate Division should be reversed and order of Special Term modified by striking out the provisions for a separate trial and as modified affirmed, without costs.

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

Ordered accordingly.


text:
    Charlotte Metcalf, Respondent, v. Marion Reynolds, Appellant, Impleaded with Others.
    (Submitted March 5, 1935;
    decided April 16, 1935.)

      Alfred T. Tompkins and Charles J. Gardella for appellant.

      David H. Moses and Albert A. Verrilli 'for respondent.
   Crane, Ch. J.

This automobile collision occurred in Connecticut, and we are, therefore, called upon to apply the Connecticut law.

The General Statutes of Connecticut, section 1628, commonly known as the “ guest statute,” provide as follows:

No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.”

We are to determine on this appeal whether the defendant was heedless and reckless within the meaning of these words as applied by the Connecticut cases.

At about 6:15 o’clock on the afternoon of August 11, 1932, the plaintiff was riding as a guest in defendant’s car, a Dodge sedan.- The defendant was driving, and the plaintiff sat in the rear seat with the defendant’s mother. They had been for a ride, and intended to call at the home of Preston Z. Jones, who lived on North Stamford avenue, Stamford, Connecticut. They were proceeding south along North Stamford avenue, which runs practically north and south, and is paved with a two-strip concrete road, about twenty feet wide. The road was dry. Jones’ house was on the west side of the avenue, or on the defendant’s right as she drove along. To turn into the driveway defendant was obliged to turn to the right. While she was making this turn to go up the driveway to the house of Mr. Jones the car was struck in the rear by another car driven by the defendant, Arthur Dick, injuring the plaintiff. According to the testimony of Mr. Dick, and the other evidence most favorable to the plaintiff, Mrs. Reynolds was guilty of negligence. This of course she denies, but we are obliged on this appeal to take the evidence most strongly against her. Proceeding towards Jones’ driveway, she turned a little to the left or over the center of the road, and then to the right to enter the driveway, which ran up a hill, but in so doing failed to put out her hand or to give other warning of her intention. Dick says for this reason he ran into her car.

Ordinary negligence, however, is not sufficient to make the defendant liable under the Connecticut statute. The collision must have been caused by her heedlessness or reckless disregard for the rights of others. The Connecticut cases, in applying this statute, have said:

Act or conduct in reckless disregard of the rights of others is improper or wrongful conduct and constitutes wanton misconduct, evincing a reckless indifference to consequences to the life, or limb, or health, or reputation or property rights of another.” (Bordonaro v. Senk, 109 Conn. 428, 431.)
Conduct arising from momentary thoughtlessness, inadvertence or from an error of judgment, does not indicate a reckless disregard of the rights of others.” (Ascher v. Friedman, Inc., 110 Conn. 1, 4.) To the same effect, Anderson v. Colucci (116 Conn. 67).

In Latham v. Hankey (117 Conn. 5, 9) the court said: By the settled construction of this statute, the liability of.the operator is limited to two classes of cases; first, where he is guilty of intentional misconduct, and second, where he acted in heedless and reckless disregard of the rights of the passenger, and this contemplates something more than mere negligence — the failure to exercise the care of a reasonably prudent person under the circumstances.” (See, also, Rose v. Heisler, 118 Conn. 632; Vanderkruik v. Mitchell, 118 Conn. 625, and Silver v. Silver, 108 Conn. 371.)

We think the plaintiff has failed to prove the defendant guilty of more than ordinary negligence, or that her conduct amounted to a heedless and reckless disregard of the rights of others, as those words have been applied and interpreted by the courts of Connecticut.

The defendant was not proceeding at an excessive rate of speed. She was approaching on a clear road, a house into the driveway of which she was to turn, and in making the turn to go up the incline of a hill which constituted the driveway, she did so without signal or putting out her hand. This was negligence, without doubt, a thoughtlessness or forgetfulness of her duty to others on the road, but it did not amount to a heedlesss and reckless disregard of the rights of others. These words mean more than ordinary negligence. They indicate wanton misconduct or a reckless indifference to consequences. Such was not the defendant’s conduct. True, before making the turn, she went slightly to the left and over the middle line of the road, as is frequently done in turning into driveways running at right angles to the road, but this was all part of the act of turning, made perilous by the failure to give the warning. Neither the left swing nor the speed was negligence; this consisted in the omission of a signal of any kind. This court has given a similar interpretation as the Connecticut courts to the words “ culpable negligence.” (People v. Angelo, 246 N. Y. 451.)

For the failure of the plaintiff to bring the defendant’s conduct within this statute of Connecticut, the judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgments reversed, etc.


author: Lehman, J.

text:
    Bertha H. Gurnee, Respondent, v. Louis B. Hasbrouck et al., as Executors and Trustees under the Will of Abraham M. Quick, Deceased, Appellants, Impleaded with Another.

      (Argued March 6, 1935;
    decided April 16, 1935.)

      James E. Finegan, Claude V. Pallister and Louis B. Hasbrouck for appellants.

      John W. Remer and Elisha K. Camp for respondent.
   Lehman, J.

Until the death of her husband in 1926 the plaintiff lived in Wisconsin. Her husband was a nephew of Martha A. Quick. Martha Quick and her husband, Abraham M. Quick, were an aged childless couple. Upon the death of plaintiff’s husband, Abraham M. Quick invited the plaintiff to come to live with them in their home in Brooklyn, writing to her: “Now dear Bertha, you know what you want to do under the adverse circumstances. The time has come, when some one we can rely upon, will be at our elbow. This I will say, if you so elect, the time is not far distant, when you will feel yourself amply rewarded, and lovingly remembered, for any sacrifice of time, or exertion, or devotion, you may have made to make us comfortable, contented, and relieved.”

The plaintiff accepted the invitation and lived with her relatives until the death of Mrs. Quick in March, 1930. Under Mrs. Quick’s will her husband received property worth more than $160,000. The plaintiff received nothing.

The plaintiff, disappointed in her expectation of being amply rewarded and lovingly remembered ” in the will of Mrs. Quick, began an action against her estate and against Abraham Messier Quick for breach of an alleged contract to pay for her services to them by legacies in their wills. The action was settled by payment to the plaintiff of $10,000 and the plaintiff signed and executed a general release to both defendants of ■ all claims she might have against either of them. Abraham M. Quick was at that time in a hospital where he remained until his death. He took no personal part in the negotiations which preceded the settlement. These were conducted by Louis B. Hasbrouck, Esq., as executor of the estate of Martha A. Quick and as attorney for Abraham M. Quick.

When Abraham M. Quick died in 1932, his will was offered for probate. Then it appeared that Abraham M. Quick had made a new will in August, 1926, immediately after the plaintiff had accepted his invitation to make her home with him and his wife. In that will Abraham M. Quick had in fact bequeathed to the plaintiff the sum of $25,000. In 1928 the testator by a codicil to his will added the sum of $5,000 to that bequest to the plaintiff, stating that the provisions for her in said will and this codicil are not only in consideration and recognition of her coming to live with my wife and me, but also in full compensation for any and all services she has rendered or may hereafter render to my wife and me so long as she shall live with either of us.” After the death of the testator’s wife and before the plaintiff had begun her earlier action to recover compensation for services rendered, the testator by a new codicil revoked the bequests to the plaintiff contained in his will and codicil.

The plaintiff opposed probate of the codicil revoking the earlier bequests to her. The proponents of the will contended that the release she had previously executed of all claims for compensation barred any claim to legacies under the will of the decedent, and any right to oppose the probate of the codicil revoking such legacies. Though the plaintiff expressly stated in the release that in making this settlement I do so expecting, understanding and believing that I will receive nothing under the'will of Abraham Messier Quick,” the Surrogate decided that plaintiff did not by this release renounce any bequests which the decedent might voluntarily make and that she could contest the probate of an instrument which purported to revoke such bequests.

We are not concerned with the correctness of that decision. The plaintiff does not in this action urge that the revocation of the bequest was not effectively made by a valid testamentary instrument. On the contrary, in this action she contends that by such revocation the testator, Abraham M. Quick, breached a contract made by himself and his wife to provide in his will generous compensation for services to be rendered by her, and also breached a further contract made between himself and his wife for the benefit of the plaintiff, whereby the bequests contained in the will of Abraham M. Quick were to be irrevocable thereafter. To prevail in this action, the plaintiff must prove that a valid contract or contracts were made that the testator should make provision for her in his will and that such provision once made should be irrevocable, and must further show that the release of all claims under such contracts was obtained by fraud. The justice at Special Term found against the plaintiff on all these points. The Appellate Division reversed and made contrary findings in favor of the plaintiff.

Doubtless when the plaintiff moved to the home of her relatives she relied upon the statement that she would be amply rewarded. None the less, it is doubtful whether this statement was intended or understood to be more than an assurance of benevolent intentions. Even though we reject such doubts, the stubborn fact remains that after the plaintiff had asserted a contractual right to compensation, she released any right to damages for the breach of the alleged contract in consideration of immediate payment of $10,000. She knew when she signed that release that she was giving up every claim based upon contract to provide for her by will. She knew the facts upon which her claim was founded that such a contract was made. She was represented by her own attorney.. She was negotiating with hostile parties against whom she had brought an action. They were protecting themselves against attack by her; they were under no duty to provide her with weapons by which her attack might be made effective. They might not, it is true, mislead her by fraudulent misrepresentations or by fraudulent concealment of facts which they were under a duty to disclose; but the record fails to disclose any fraudulent misrepresentation or fraudulent concealment.

It is said that she was told by them that unless she accepted the proposed settlement she would receive nothing under the wills of Mr. or Mrs. Quick. At that time Mr. Quick had in fact revoked the provisions for plaintiff in his will and codicil, and the expression of an opinion that the plaintiff would receive nothing except through settlement cannot possibly be construed as a fraudulent representation that Mr. Quick had not previously carried out his benevolent intention to provide for her by will. The plaintiff had no right to expect disclosure that a bequest had been revoked, when she made her hostile claim. A release executed under advice of counsel for the purpose of ending litigation cannot be set aside on such grounds as are here urged. There is no evidence to sustain the finding of the Appellate Division that there was fraud. Apparently that court relied largely upon the opinion of the Surrogate in the probate proceedings that the release was obtained by concealment of the true facts. The Surrogate decided only that the release did not bar a claim under the will if the bequest therein contained was not revoked thereafter by a valid codicil. His decision constitutes no binding adjudication of any of the issues in this action.

The judgment of the Appellate Division should be reversed and the judgment at Special Term affirmed, with costs in this court and in the Appellate Division.

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

Judgment accordingly.


author: Hubbs, J.

text:
    In the Matter of the Application of The City of New York Relative to Acquiring Title to Real Property Required for Opening and Extending Harrison Avenue in the Borough of The Bronx. Fulton Development Corporation, Appellant; Sidnor Realty Co., Inc., Respondent.

      (Argued February 26, 1935;
    decided April 16, 1935.)

      Merle I. St. John for appellant.

      Paul Windels, Corporation Counsel (Anson Getman, Joseph F. Mulqueen, Jr., and Reuben Levy of counsel), for The City of New York, amicus curio.

      Harry H. Chambers, Harry B. Chambers and Thomas K. Mahlon for respondents.
   Hubbs, J.

The appellant, the owner of land assessed for benefit in a condemnation proceeding, brought this proceeding to have the award for the damage parcel in question reduced.

The proceeding involves the bed of Harrison avenue between West One Hundred and Seventy-sixth street and West Tremont avenue in the city of New York. Three separate awards have been made. For the easterly half of the street, known as damage parcel No. 2, an award of one dollar has been made to the unknown owners. For the southerly portion of the westerly half of the street, known as damage parcel No. 1, which adjoins school property, owned by the city, an award of $15,525 was made to the city. For the northerly portion of the westerly half of the street, known as damage parcel No. 3, an award of $7,608 was made to the unknown owners. After the awards, assessments for benefit were levied as follows: Against the property of appellant, which lies on the easterly side of Harrison avenue adjoining damage parcel No. 2, $14,093.28, and against the property of respondent, which lies on the westerly side of Harrison avenue adjoining damage parcel No. 3, $3,263.45.

The respondent, claiming to be the owner of the award covering damage parcel No. 3 through an assignment which will be hereinafter more particularly referred to, obtained an order in a proceeding to which appellant was not a party directing payment thereof to respondent.

Thereafter, this proceeding was instituted, its purpose being to have the award for damage to damage parcel No. 3 reduced. The city and the respondent were both made parties. The motion was denied and the order was affirmed by the Appellate Division, which granted permission to appeal to this court upon certified questions.

The several parcels of land herein referred to are all parts of a tract acquired by Arabella D. Huntington between October, 1907, and January, 1923. Before the latter date, Harrison avenue was not improved. It was, however, laid out on the map of the city of New York, No. 1192, filed on July 27, 1907.

Prior to March 10, 1924, she conveyed to the city the land adjoining on the west that portion of Harrison avenue known as damage parcel No. 1. The land so conveyed extended northerly from West One Hundred and Seventy-sixth street toward West Tremont street for a distance of 295.48 feet. Upon the plot the city erected a school building with a playground fronting on Harrison avenue. Along the westerly side of Harrison avenue it built a fence, outside of which it constructed a sidewalk and curb.

On June 15, 1925, the executors of Arabella D. Huntington entered into a contract with Benann Holding Corporation to convey to it the land on the westerly side of Harrison avenue, extending northerly from the school property to West Tremont avenue and westerly to Macombs road, being the land now owned by respondent. The land so contracted to be sold adjoins that part of Harrison avenue known as damage parcel No. 3 on the west. That contract was not recorded. The land to be conveyed as described in the contract included the interest of the grantors in land thus described: easterly by the westerly side of Harrison Avenue adjoining said premises above described to the center line of said Harrison Avenue; be all the above described distances more or less.”

By deed dated July 25, 1925, the land so contracted to be sold to Benann Holding Corporation was conveyed by the executors of Huntington to Markap Holding Corporation, the assignee of the contract by a deed which described the land as bounded on the east by Harrison avenue and which did not purport to convey any right, title or interest in Harrison avenue.

Thereafter, through mesne conveyances, the land described in the Markap deed became vested in respondent. Each deed in the chain of title was preceded by a contract which contained a clause in substantially the following form: This sale covers all right, title and interest of the seller of, in and to any land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining said premises, to the center line thereof, and all right, title and interest of the seller in and to any award made or. to be made in lieu thereof, and in any award for damage to said premises by reason of change of grade of any street; and the seller wdll execute and deliver to the purchaser, on closing of title, or thereafter, on demand, all proper instruments for the conveyance of such title and the assignment and collection of any such award.”

In no case was this clause carried over from contract to deed. The land conveyed by each deed is a parcel bounded on the east by Harrison avenue. Respondent bases its claim to the award covering damage parcel No. 3 upon an assignment of the award given by the executors of Huntington, record owners of the fee, subsequent to the decree of damage and benefit.

By deed also dated July 25, 1925, Markap Holding Corporation acquired from the executors of Huntington, the land on the easterly side of Harrison avenue between West One Hundred and Seventy-sixth street and West Tremont avenue. This parcel was described as bounded on the west by Harrison avenue. Through mesne conveyances appellant acquired title to the last-mentioned parcel which adjoins damage parcel No. 2 on the east.

Thus, of the two parcels conveyed to Markap Holding Corporation on July 25, 1925, title to the one on the easterly side of Harrison avenue vested in the appellant on July 1, 1926, and title to the one on the westerly side vested in respondent on April 2, 1928.

The first step in the proceedings to condemn the land in Harrison avenue was taken on January 9, 1925, before either appellant or respondent acquired its title. The Rule map was completed on February 17, 1926, and approved by the Board on January 6, 1927. On April 4, 1927, the order to condemn was entered and the city acquired its title on May 2, 1928.

In the meantime and on February 24 and 25, 1926, appellant filed plans for two brick tenement buildings to' be erected on its land on the easterly side of Harrison avenue. The buildings had their entrances and many windows fronting on Harrison avenue. They were completed in 1927, a walk was constructed along Harrison avenue and the easterly half of the street, damage parcel No. 2, was improved.

Two years after plans were filed by appellant for the' buildings on the easterly side of the street, respondent' filed plans for a tenement building on its land on the westerly side of Harrison avenue adjoining damage parcel No. 3. This building was erected in 1928 and had its main entrance, entrances to three stores and many windows fronting on Harrison avenue. Respondent also built a sidewalk and improved the portion of the street, damage parcel No. 3 adjoining its land on the east.

The respondent, basing its claim to the award for damage parcel No. 3 upon the provision for street rights in the original contract between the executors of Huntington and Benann Holding Corporation, the assignment thereof to the Markap Holding Corporation and the intermediate contracts from the various grantors down to and including that from its immediate grantor, each of which intermediate contracts provided for an assignment of any award covering damage parcel No. 3, procured from the Huntington executors the assignment of the award for damage parcel No. 3 above referred to. It claims that the executors of Huntington, when they deeded to Markap Holding Corporation the parcel on the easterly side of the street, now owned by appellant, were already under contract to convey to Benann Holding Corporation not only the parcel on the westerly side of the street which respondent now owns, but as well the fee of damage parcel No. 3, and that by the assignment of the Benann Corporation contract to Markap Holding Corporation, Markap succeeded to all the contract rights not covered by the deed from the executors to Markap Holding Corporation, and that those rights are now vested in it.

The appellant contends that when the Markap Holding Corporation accepted deeds to the two parcels on either side of the street, with the street as the boundary as to each parcel, it acquired street easements in Harrison avenue, and that appellant, as successor in title of Markap Holding Corporation, is now entitled to easements of light, air and access over all of Harrison avenue including damage parcel No. 3 which, adjoins respondent’s land and as to which damage parcel a substantial award has been made and directed to be paid to respondent.

The primary question is whether easements of light, air and access exist over damage parcel No. 3 in favor of the respondent, as owner of the property adjoining damage parcel No. 3 on the west, or the appellant as the owner of the property adjoining Harrison avenue on the east.

Prior to the acquisition of title by Arabella D. Huntington, Harrison avenue was designated on the city map. Thereafter, in contracting with reference to land along that street, all parties were chargeable with notice of such designation, and when the original common grantors contracted to convey the land on the westerly side, describing it as bounded on Harrison avenue and in addition their “ right, title and interest * * * in and to ” that part of Harrison avenue which is now damage parcel No. 3, they impliedly recognized the existence of street rights to some extent, at least. Despite the existence of such contract, Markap Holding Corporation accepted a deed of the land on the westerly side of the street which did not purport to convey street rights, but expressly bounded the property by the street, and at the same time accepted a deed of land on the easterly side in which that parcel likewise was bounded by the street. While, subsequently, Markap did acquire an assignment of the original contract and there were subsequent contracts which provided for conveyance of a right, title and interest in so much of the street as now constitutes damage parcel No. 3, or an assignment of such award as might be paid therefor, each said contract recognized the existence of Harrison avenue, and in no case did any grantor attempt, as to the land on either side, to deed more than the land as bounded by the street. There must be taken into account also the acts of the parties in erecting buildings with windows and entrances fronting on the street, in building sidewalks and in improving the land for highway purposes. None of these acts are consistent with any construction other than that it was understood by the owners of the land on either side that their grants included easements of light, air and access in Harrison avenue. The representatives of the Huntington estate never parted with the record title to damage parcel No. 3 and if that parcel was incumbered with easements in favor of the land now owned by respondent, then an award for more than a nominal sum to the owners of damage parcel No. 3 is erroneous. The fact that respondent holds an assignment of the award from the Huntington estate does not enhance the value of the land itself or relieve the land from the obligation of the easements. The original contract contemplated the existence of Harrison avenue as a public thoroughfare, and the Benann Holding Company, in accepting a contract defining the easterly bounds of its main grant as Harrison avenue and purporting to cover only the right, title and interest ” of the grantors in what is now damage parcel No. 3, recognized the existence of outstanding easements in that parcel. Markap, in accepting its deed to respondent’s land with Harrison avenue as its easterly boundary and without reference to rights in damage parcel No. 3, still further recognized that its only right in damage parcel No. 3 was a right to easements of light, air and access as appurtenant to the estate granted.

Likewise, Markap, in accepting a deed to the land on the easterly side which described the land conveyed as bounded on the west by Harrison avenue, recognized the existence of that street and may be presumed to have purchased upon the understanding that its grant impliedly covered easements of light, air and access in the street itself.

That portion of Harrison avenue constituting damage parcel No. 3 was open and afforded unrestricted light and air and afforded convenient access to any land in favor of which an easement for access existed.

To hold that damage parcel No. 2, embracing the easterly half of the street, is incumbered with easements only in favor of appellant’s property and has only a nominal value and that damage parcel No. 3 is unencumbered with easements in favor of respondent’s property and has substantial value, would give to the original unrecorded contract as between the executors of Huntington and the Benann Holding Corporation an effect which we believe unwarranted. In view of the fact that Harrison avenue had long been laid out as a street on the city map and in view of the deed, given in fulfillment of the contract, from which deed all reference to rights in the street was omitted, the subsequent retention of record title by the original grantors without the exercise of domain over the land not conveyed and the absence of the exercise of such domain on the part of all subsequent owners of adjoining land except to fit it for street use, we believe establishes the true intent of the parties to have been to subject the land in the bed of Harrison avenue to easements in favor of adjoining land and to contract to convey and acquire only such right, title and interest therein as was consistent with such use. Thus we arrive at the conclusion that damage parcel No. 3 is subject to easements of light, air and access in favor of appellant’s land. That being true, the award, in excess of a nominal amount, is improper and when compared with the nominal award for damage parcel No. 2, is inequitable.

Easements exist in favor of appellant’s land over the Ml width of Harrison avenue, although that land is bounded on the north and south by public streets.

Easements may be created in city streets despite the existence of other access. (Matter of Adams, 141 N. Y. 297; Matter of Schneider, 136 App. Div. 444; 199 N. Y. 581.)

They may be created in streets not yet opened where designated on a city map. (Matter of Lewis Street, 2 Wend. 472; Matter of Adams, supra.)

And such easements may extend “ to the full extent of its dimensions.” (Matter of Lewis Street, supra, p. 476.)

The intent of the parties in bounding land upon the highway is the element which, in the light of ah the circumstances, must be held to govern. (Matter of City of New York [Northern Blvd.], 258 N. Y. 136.)

The decision in Matter of City of New York (West 229th St.) (259 N. Y. 647) has not changed such general rule of law.

Since the respondent never acquired the fee to damage parcel No. 3, and since that parcel must be held, in the light of all the circumstances, to be subject to easements of light, air and access, an award for more than nominal damages must, under the principle discussed in Matter of City of New York (Northern Blvd.) (supra), be held to be excessive.

The error in awarding substantial damages for damage parcel No. 3 amounts to an error of law which this court may review. (Matter of City of New York [Fourth Ave.], 255 N. Y. 25.)

The appellant is a proper moving party herein as the award which puts upon damage parcel No. 3 a value in excess of its value as incumbered with easements constitutes damage to appellant, the owner of a parcel which has been incumbered with an assessment for benefit increased in amount by reason of such excess award.

Appellant was not a party to the proceeding in which the award was made. It was not a necessary party because not the record owner of any of the property condemned. Its liability as owner of land assessed for benefit was not fixed until confirmation of the award. As an owner of land assessed for benefit, it has a right to have the award distributed in accordance with the interests of the parties entitled thereto and the court has power to make all necessary orders to protect its rights under the Condemnation Law. (Condemnation Law, § 26; Cons. Laws, ch. 73.)

This court, in Matter of City of New York (Decatur St.) (196 N. Y. 286), refused to take part in the distribution to abutting owners of a fund which none of the claimants were entitled to because of the fact that a substantial award had been made for property subject to an easement. It did, however, vacate the award.

No question of loches is presented. This court has not infrequently entertained proceedings to correct an erroneous award long after the making of the award. (Matter of Schneider, 199 N. Y. 581; Matter of City of New York [Decatur St.], supra.)

The orders should be reversed, with costs, and the matter remitted to the Special Term to proceed in accordance with this opinion.

The first, second and fourth questions certified should be answered in the negative and the third question in the affirmative. We have indicated that we believe, under the facts in this case, the appellant was within its rights in instituting this proceeding and that it was not chargeable with loches, and we deem it unnecessary to more specifically answer the fifth and sixth questions.

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

Ordered accordingly.


text:
    Nathan Eisenberg, Appellant, v. Commercial Credit Corporation, Respondent.
    (Argued March 6, 1935;
    decided April 16, 1935.)

      Raphael H. Weissman and Herman Scheckner for appellant.

      Walter G. Schelker, Jr., and Duane R. Dills for respondent.

      Emil Weitzner, Samuel H. Kaufman and David G. Haskins for Checker Products Sales and Service Corporation et al., amici curia.

   O’Brien, J.

Under a conditional sales agreement, plaintiff’s assignor purchased from defendant’s assignor fifty taxicabs, made some installment payments and defaulted on later installments. April 18, 1932, the seller retook possession of the chattels and on May 2, 1932, resold them. The complaint does not allege the date of the notice of resale. The time between the dates of repossession and resale is only fourteen days, but plaintiff contends that, pursuant to sections 78 and 79 of the Personal Property Law (Cons. Laws, ch. 41), it was entitled to an interval of twenty days.

Section 78 provides that the seller * * * shall retain the goods for ten days after the retaking * * * during which period the buyer * * * may redeem the goods * * Section 79 provides that, if the buyer does not redeem the goods within ten days after the seller has retaken possession, * * * the seller shall sell them at public auction, * * * such sale to be held not more than thirty days after the retaking. * * * The seller shall give to the buyer not less than ten days’ written notice of the sale * * This is the effect of these two sections; the buyer has ten days after the retaking within which to redeem the goods but, if after the expiration of those ten days he fails to redeem, the seller, having given ten days’ notice to the buyer, may then sell the goods. The ten days’ notice of resale may be effected ten days prior to the expiration of the period of redemption and in such event the ten days’ time for redemption and the ten days’ notice of sale may run concurrently. The foreclosure sale under the Act can be held on the eleventh day after the retaking. The seller may give his notice of sale on the day of the retaking, fixing the resale on the day following the expiration of the period of redemption.” (Bogert, Commentaries on Conditional Sales [Uniform Laws Annotated, vol. 2A, p. 163].) Although this question has not before been in this court, we think that the language of the statute compels the interpretation which we now give to it and is in harmony with the decisions of other courts of this State. (Strickland v. Hare & Chase, Inc., 217 App. Div. 196, and several rulings at Special Term.)

The judgment should be affirmed, with costs.

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

Judgment affirmed.