text:
    Bachoobai Woronzoff-Daschkoff, Respondent, v. Roman Woronzoff-Daschkoff, Appellant.
    Argued January 17, 1952;
    decided March 13, 1952.

      M. MacSchwebel, Morton Brauer and Harry Silver for appellant.
    I. The proof herein, as a matter of law, is insufficient to support a decree of annulment. (de Baillet-Latour v. de Baillet-Latour, 301 N. Y. 428; Schaeffer v. Schaeffer, 160 App. Div. 48; Lapides v. Lapides, 254 N. Y. 73; Jennings v. Jennings, 186 Misc. 1021; Feig v. Feig, 232 App. Div. 172; Griffin v. Griffin, 122 Misc. 837, 209 App. Div. 883.) II. Fraud to vitiate a marriage contract (a) must be made with a proven intent to deceive; (b) must be so material as to go to the very essence of the marriage contract, and (c) must be proven by corroborated evidence, (di Lorenzo v. di Lorenzo, 174 N. Y. 467; Rutstein v. Rutstein, 221 App. Div. 70; Fisk v. Fisk, 6 App. Div. 432; Wendell v. Wendell, 30 App. Div. 447; Glean v. Glean, 70 App. Div. 576; Shrady v. Logan, 17 Misc. 329; Anonymous, 21 Misc. 765; Laage v. Laage, 176 Misc. 190; Shinker v. Shinker, 271 App. Div. 688; Roth v. Roth, 97 Misc. 136; Sobol v. Sobol, 88 Misc. 277.)

      William G. Mulligan, Alexis C. Coudert and Lewis B. Greenbaum for respondent.
    I. This marriage was properly annulled because the proof shows that appellant contracted it with the secret intention of using the marital relationship to mulct respondent of her wealth and without intending to enter into a permanent union. (Ryan v. Ryan, 156 Misc. 251; Robert v. Robert, 87 Misc. 629; Thurber v. Thurber, 186 Misc. 1022; Security-First Nat. Bank of Los Angeles v. Schaub, 71 Cal. App. 2d 467; Bohmert v. Bohmert, 241 N. Y. 446; de Baillet-Latour v. de Baillet-Latour, 301 N. Y. 428; Feynman v. Feynman, 168 Misc. 210.) II. The marriage was properly annulled because the proof shows that (a) appellant made premarital representations that he had never taken money from any woman and that following his marriage to respondent he would support himself; (b) these representations were willfully false, and (c) they were material to respondent and she relied on them in consenting to marry appellant. (Shonfeld v. Shonfeld, 260 N. Y. 477; de Baillet-Latour v. de Baillet-Latour, 301 N. Y. 428; Haas v. Haas, 298 N. Y. 69; Young v. Valentine, 177 N. Y. 347; di Lorenzo. v. di Lorenzo, 174 N. Y. 467; Brackett v. Griswold, 112 N. Y. 454; Keviczky v. Lorber, 290 N. Y. 297.) III. The facts on which this annulment is based are proved by “ other satisfactory evidence ” in addition to the “ declaration or confession of either party to the marriage ” within the meaning of section 1143 of the Civil Practice Act. (de Baillet-Latour v. de Baillet-Latour, 301 N. Y. 428; Boyd v. Boyd, 252 N. Y. 422; McKee v. McKee, 267 N. Y. 96; Monypeny v. Monypeny, 171 App. Div. 134; Caleca v. Caleca, 278 App. Div. 771.)
   Desmond, J.

This appeal is taken, by our leave, from an affirmance of a judgment annulling a marriage because of the husband defendant’s alleged fraud (Domestic Relations Law, § 7, subd. 4; Civ. Prac. Act, § 1139).

On March 24, 1947, in New York City, there was solemnized the wedding of plaintiff, a woman thirty-two years old, born in India, and possessed of great wealth, to defendant, an impoverished émigré Russian nobleman, forty-five years of age. They had known each other for about three months. The marriage had been urged and encouraged by defendant’s younger brother who had been acquainted with plaintiff for some years, and who had been her unsuccessful suitor. Plaintiff knew that defendant was poor. Defendant knew that plaintiff was rich. A European honeymoon, paid for by plaintiff, continued until August, 1947, when plaintiff went to India on business matters, and defendant sailed alone to New York to await her return. The parties cohabited while in Europe, hut not afterwards. When plaintiff came back to New York City, she lived with defendant at her home for about a month and there then ensued (in December, 1947) a quarrel in which, according to her testimony and the findings here, defendant upbraided plaintiff for her meanness in money matters and told her that he had married her for her money, and not for love. She told him, then, to leave the house and he did, “ and that was the end between us.” He was locked out of the house, and never returned.

This suit by plaintiff for an annulment on the ground of fraud was commenced in May, 1949. The complaint alleges that plaintiff’s consent to the marriage was procured by defendant’s fraud in that, as alleged, he falsely represented to her that he had always earned his own living and had never taken money from any woman, that his purpose in marrying her was to contribute to her happiness and her support and perform faithfully his husbandly duties, that he was an American citizen and had not forfeited that citizenship, that he was in every way qualified to carry the duties and responsibilities of married life and that his social position was high in Europe and New York. In a second cause of action there are allegations of a conspiracy by defendant and his brother whereby the former was to, and did. meet, court and marry plaintiff. The complaint continues with averments that defendant’s representations were false in that he had not regularly earned his living for years, that he had received large sums of money from women, including a divorced wife in Europe, that he was a ne’er-do-well without social position, and a hypochondriac given to fits of uncontrollable temper and to periods of sexual impotency, that his purpose, successfully accomplished, was to obtain large sums of money from plaintiff for himself and his relatives and that, because of long residence in South America, his American citizenship was revocable.

Defendant’s answer contained, besides denials, a counterclaim in which, on various grounds, he demanded an annulment, but this counterclaim was withdrawn at the trial.

The trial court found that defendant had made all the representations alleged in the complaint, and that plaintiff had relied on them in giving her consent to the marriage. Those representations, so held the trial court, were all false in that defendant had, in Paris, received a large sum of money from his former wife, as a price for divorce, that defendant’s sole purpose in marrying plaintiff was to get money for his own life of idleness and for his relatives, that to accomplish this he permitted plaintiff to pay all the honeymoon expenses and took money from her, that he attempted secretly to collect commissions from the contractor who remodeled plaintiff’s home, that he tried to get money from plaintiff on the pretext of starting a business and tried to get her to set up a trust fund with him as her trustee, that he never made any real effort to find work or to support himself, and that he at no time offered “ to fulfill his marital obligation and promise to plaintiff to provide a home for her and to support himself ”. Such were the findings.

Leaving aside for a moment the matter of corroboration as required by section 1143 of the Civil Practice Act (see de Baillet-Latour v. de Baillet-Latour, 301 N. Y. 428), we now examine the proof. There was testimony that defendant’s brother was active in promoting and hurrying the marriage, and that defendant told plaintiff that he had never taken money from any woman and that he intended to support himself. There is no testimony that he ever promised to support plaintiff or provide a home for her, a promise which would have been of small consequence if made, in view of the disparate finances of the parties and the fact that the wife had an elaborate home of her "own in New York. It could reasonably be inferred from defendant’s acts and attitudes that he was largely influenced by plaintiff’s wealth, and that he got money from her and tried to get more. He had worked, before marriage, as a hotel employee and as a dancing instructor or dancing partner in New York, Paris and the Argentine Eepublic, and he never claimed to have any other occupation or means of support. The wife and her brother provided the honeymoon expenses and defendant’s pocket money, but they did that not unwillingly. Defendant was sexually impotent at times, but cohabited with his wife on many occasions, before her departure for India, five months after the marriage. When she left on that journey, she sent defendant a loving message. There was testimony that defendant and his brother got secret commissions on the decoration and renovation of plaintiff’s home. Defendant was subject to colds and other minor ailments, and on occasions flew into sudden and stormy rages, unaccompanied by physical violence. He never got a job or tried to find one. He urged plaintiff to make him her trustee and unsuccessfully importuned her for capital with which to open a haberdashery business in New York City. When they had their final quarrel, he told her that he had married her for money and not for love, and he told his wife’s brother that his (defendant’s) former wife had to pay a great sum to rid herself of him, and that plaintiff would have to pay much more. Plaintiff ordered him from her house, and he left.

Defendant, on that showing, was no model of chivalry or propriety. That proof, believed by the trier of the facts, was enough, we will assume, to expose him as a fortune hunter, a sluggard, a hypochondriac, and a man who took his promises lightly. But this is a suit to annul a marriage for fraud, and, while we have, for better or worse, retreated (di Lorenzo v. di Lorenzo, 174 N. Y. 467; Shonfeld v. Shonfeld, 260 N. Y. 477, 481) from the old idea that marriages can be voided only for frauds going to the essentials of marriage, that is, consortium and cohabitation, it is, nonetheless, still the law in New York that annulments are decreed, not for any and every kind of fraud (Mirizio v. Mirizio, 242 N. Y. 74, 80; Svenson v. Svenson, 178 N. Y. 54, 59) but for fraud as to matters ££ vital ” to the marriage relationship only (Lapides v. Lapides, 254 N. Y. 73, 80), Premarital falsehoods as to love and affection are not enough, nor disclosure that one partner “ married for money ” (Schaeffer v. Schaeffer, 160 App. Div. 48, 49; Feig v. Feig, 232 App. Div. 172, 177, 178). Lack of robust health is not enough (Riley v. Riley, 73 Hun 575, 576). Of course, a husband is under a legal duty to support even a well-to-do wife (Young v. Valentine, 177 N. Y. 347, 352) and, in ordinary cases the man’s intent, premaritally formed, not to support his wife might perhaps be enough to nullify a marriage. But this husband never promised his wife to support her, and, obviously was never expected to. He told her he had earned his living before marriage, and, for all that appears, he had. He promised to find a job after marriage, but, surely, this was not a consideration ‘ ‘ vital ’ ’ to this particular marriage. He falsely warranted that he had never taken money from women, but premarital affairs much graver than that are insufficient'for the judicial voiding of a marriage. We do not discuss defendant’s supposed frauds as to his American citizenship or as to the identity of the officiating clergyman at the wedding, since there is no proof at all of any fraud in either connection.

Summing up the case, there is here nothing to disprove defendant’s assertions that he intended to, and did, perform the fundamental duties of the marriage relationship (thus distinguishing this case from de Baillet-Latour v. de Baillet-Latour, supra). If this defendant deceived his wife, it was not as to any vital element of their union. It would serve no purpose to repeat here what this court, and many another court, has said as to marriage being “ more than a personal relation between a man and woman ”, as to its being “ an institution involving the highest interests of society ” and as to its control by law “ based upon principles of public policy affecting the welfare of the people of the State ” (Fearon v. Treanor, 272 N. Y. 268, 272; see Maynard v. Hill, 125 U. S. 190, 205). We repeat the language of Bishop on Marriage and Divorce (6th ed., Vol. 1, § 167): “In that contract of marriage which forms the gateway to the status'of marriage, the parties take each other for better, for worse, for richer, for poorer, to cherish each other in sickness and in health; consequently a mistake, whether resulting from accident, or, in general, from fraudulent practices, in respect to the character, fortune, health, or the like, does not render void what is done ” (see to the same effect, Lapides v. Lapides, supra, p. 80).

Concluding, as we do, that the proof here, even if it had been corroborated as required by section 1143 of the Civil Practice Act, was not sufficient for an annuhnent decree, it is not, strictly speaking, necessary or appropriate for us to make an investigation as to the presence or absence of the needed corroboration. However, lest we be misunderstood, we comment on that feature of this case, also. We held in de Baillet-Latour v. de Baillet-Latour (supra, p. 434) that section 1143 means that, besides confessions or declarations of the parties, there must be “ other material from other sources, substantial and reliable enough to satisfy the conscience of the trier of the facts ”. We find no “ other material ” of that kind or quality, in this record. Every bit of direct proof "of false representations is in the form of a “ declaration or confession ’ ’ by defendant. Recognizing this, plaintiff points to these circumstances as being corroborative: that defendant had premarital sexual relations Avith plaintiff, that he took secret commissions from the building contractor, that he passed off as a Protestant minister the rabbi Avho solemnized the marriage, that he was unable to consummate the marriage on the Avedding night, that he was locked out of the house by plaintiff’s brother, that a few weeks thereafter he sued his wife for a separation, that he pleaded in this action, but later withdrew, a scandalous ” counterclaim, and that he objected to the exclusion of the public from the courtroom during the trial of this action. We do not think that any of those facts, or all of them together, constitute “ other satisfactory evidence ” of the alleged fraud. The meaning of that phrase in section 1143 of the Civil Practice Act has been so recently explored by this court in de Baillet-Latour v. de Baillet-Latour (supra) that repetition is unnecessary.

The judgments should be reversed and the complaint dismissed, without costs.

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Fred Dioquardo, Appellant.
    Argued January 14, 1952;
    decided March 13, 1952.

      Sol Gordon and Sidney R. Siben for appellant.
    I. The information failed to charge a crime under section 43 of the Penal Law, is therefore defective, and the conviction thereunder is a nullity. (People ex rel. Brown v. Tighe, 146 App. Div. 491; People v. Rosenkrantz, 123 Misc. 335.) II. The acts of defendant complained of in the information are amply covered by subdivisions 1 and 2 of section 722 of the Penal Law. (People v. Tylkoff, 212 N. Y. 197; People v. Corrigan, 253 N. Y. 301.)

      Lindsay R. Henry, District Attorney (Harry C. Brenner of counsel), for respondent.
    While the contention of defendant purports to question the sufficiency of the information, a reading of defendant’s brief indicates that the only question before this court is whether or not, under the facts in this ease, defendant should have been charged with a violation of section 722 of the Penal Law instead of section 43. (People v. Tylkoff, 212 N. Y. 197; People [Grahl] v. Vogt, 178 Misc. 446; People v. Copit, 187 Misc. 744; People v. Carter, 88 Hun 304; People ex rel. Schneider v. Hayes, 108 App. Div. 6; People ex rel. Dinsmore v. Keeper of Erie Co. Penitentiary, 125 App. Div. 137.)
   Per Curiam.

The information charges a violation of section 722 of the Penal Law by name although not by section number. There is no requirement that the section number be mentioned. Indeed, the presence of the number is unnecessary and surplusage. (People v. Adler, 174 App. Div. 301, 303; see, also, People v. Dwyer, 160 App. Div. 542, 547, affd. 215 N. Y. 46.) The information also sets forth, with sufficient certainty and particularity, the act constituting that offense, which the defendant concedes to be disorderly conduct. It was sufficient to justify the issuance of a warrant of arrest. Thus, the court had jurisdiction both of the person of the defendant and the subject matter of the charge.

The allegations in the information to the effect that the defendant’s act violated section 43 of the Penal Law and openly outraged public decency — the language of section 43 — -are unnecessary matter, and may be disregarded.

The improper designation in the information of disorderly conduct as a “ crime ” instead of “ offense ” is an irregularity which the defendant waived when he entered his plea of guilty.

The defendant was properly convicted of disorderly conduct. We pass upon no other question.

The judgment should be affirmed.

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

Judgment affirmed.


author: Fuld, J.

text:
    Nathan Garzo et al., Appellants, v. Maid of the Mist Steamboat Company et al., Respondents, et al., Defendants.
    Argued January 7, 1952;
    decided March 13, 1952.

      Adrian Block and John L. Beyer, Jr., for appellants.
    I. Section 49 of the G-eneral Corporation Law speaks prospectively as of the effective date of the enactment, April 6, 1944,. and is applicable only to corporations the charters of which expire after the effective date of such section. (People v. Wendel, 217 N. Y. 260; Hub Commercial Co. v. Rosenblum, 21 N. Y. S. 2d 426; Addiss v. Selig, 264 N. Y. 274; Lewittes & Sons v. Perlow, 254 App. Div. 94; Jacobus v. Colgate, 217 N. Y. 235; Germania Sav. Bank v. Village of Suspension Bridge, 159 N. Y. 362; Roberts v. Roberts-Wicks Co., 184 N. Y. 257; Davison v. Parke, Austin & Lipscomb, Inc., 285 N. Y. 500.) II. A construction of section 49 of the General Corporation Law to the effect that the revival of the charter of corporate defendant is thereby authorized renders that section invalid as to plaintiffs. Even if not so invalid, plaintiffs are entitled to an appraisal of their stock and payment to them of the appraised value. (Rossi v. Claire, 186 Cal. 544; Stott v. Stott Realty Co., 288 Mich. 35; Continental Co. v. United States, 259 U. S. 156; Williams v. Renshaw, 220 App. Div. 39; People v. New York Bldg. Loan Banking Co., 50 Misc. 23; Michael v. Cayey-Caguas Tobacco Co., 190 App. Div. 618; Coolidge v. Long, 282 U. S. 582; Nichols v. Coolidge, 274 U. S. 531; Matter of Mohr, 175 Misc. 706; Douglas v. Perlstein, 170 Misc. 561; Brennan v. Barnes, 133 Misc. 340; Welt v. Beachcomber, Inc., 166 Misc. 29.) III. The conduct of plaintiffs is not a bar to the relief demanded. (Ansorge v. Belfer, 248 N. Y. 145; Draper v. Oswego Co. Fire Relief Assn., 190 N. Y. 12; White v. La Due & Fitch, Inc., 277 App. Div. 1092; Moore v. United States Cremation Co., 158 Misc. 621; Feldman v. Metropolitan Life Ins. Co., 259 App. Div. 123; Wynn v. Wynn, 189 Misc. 96.)

      Paul P. Cohen, William G. Shoemaker, Jr., Robert O. Swados and Preston L. Wright, Jr., for respondents.
    I. Section 49 of the General Corporation Law applies to corporations whose stated term expired before the enactment of the section. (Matter of Fleetwood Acres, Inc., v. National Life Ins. Co., 186 Misc. 299, 270 App. Div. 1050; Matter of Andersen, 178 N. Y. 416; People ex rel. Huntington v. Crennan, 141 N. Y. 239; People ex rel. Collins v. Spicer, 99 N. Y. 225; People ex rel. Central Trust Co. v. Prendergast, 202 N. Y. 188; Beeler & Campbell Supply Co. v. Warren, 151 Kan. 755; Wilner Friends Credit Assn. v. Scheffres, 175 Misc. 909.) II. The revival of defendant corporation pursuant to section 49 did not infringe the rights of plaintiffs under the Federal or State Constitution. (Lord v. Equitable Life Assur. Soc., 194 N. Y. 212; Davison v. Parke,

      Austin & Lipscomb, Inc., 285 N. Y. 500; McNulty v. W. & J. Sloane, 184 Misc. 835; Matter of Mohr, 175 Misc. 706; Brennan v. Barnes, 133 Misc. 340; Wilson v. Brown, 107 Misc. 167, 190 App. Div. 926; Anderson v. International Minerals & Chemical Corp., 295 N. Y. 343; Matter of Mt. Sinai Hosp., 250 N. Y. 103.) III. The refusal to grant a court-mandated appraisal of, and payment for, plaintiffs’ stock did not constitute an abuse of the equitable discretion vested in the courts below. (Nann v. Raimist, 255 N. Y. 307; Treadwell v. Clark, 190 N. Y. 51; Matter of Bronson, 177 App. Div. 374, Albrecht, Maguire & Co. v. General Plastics, Inc., 256 App. Div. 134; Matter of Silberkraus, 250 N. Y. 242; Langan v. Francklyn, 29 Abb. N. C. 102; Metropolitan Tel. & Tel. Co. v. Metropolitan Tel. & Tel. Co., 156 App. Div. 577; Precision Co. v. Automotive Co., 324 U. S. 806.) IV. Plaintiffs are not entitled to the relief prayed for in the amended complaint. (Brennan v. Barnes, 133 Misc. 340; Metropolitan Tel. & Tel. Co. v. Metropolitan Tel. & Tel. Co., 156 App. Div. 577; Bloedorn v. Washington Times Co., 89 F. 2d 835; Wilmington Trust Co. v. Wilmington Soc. of Fine Arts, 34 A. 2d 308 [Del.].)
   Fuld, J.

This is an appeal by plaintiffs as of right, on constitutional grounds, from the Appellate Division’s unanimous affirmance of the judgment dismissing their complaint. Plaintiffs, minority stockholders of defendant corporation, which by its charter terms expired in 1942, object to its attempted revival in 1947 pursuant to the provisions of section 49 of the General Corporation Law, enacted in 1944. Contending that the application of that section to defendant effects an unconstitutional deprivation of their rights as stockholders, plaintiffs seek a dissolution of the corporation and payment to them of their prorata share of its assets.

Defendant Maid of the Mist Steamboat Corporation is primarily engaged in the operation of sightseeing and pleasure steamboats on the Niagara Eiver, just below Niagara Falls. It was organized in 1892 under the Transportation Corporations Law (L. 1890, ch. 566) for a term of fifty years, the maximum then allowed by statute. It was not until 1947 that anyone connected with the corporation became aware of the fact that it had “ expired ” in 1942. The failure to take action, pursuant to section 45 of the General Corporation Law, to extend the corporation’s life before that time was, it is clear, the result solely of inadvertence. The business and activities of the corporation were carried on after 1942 just as they had been before. Meetings of directors and stockholders were held, a lease from a Canadian Parks Commission was renewed, dividends were declared annually and franchise and other taxes paid.

After the fact of expiration was brought to its attention in 1947, the board of directors — over plaintiffs’ objection but with the approval of holders of approximately three fourths of the shares of the stock of the corporation — immediately proceeded to revive the corporation’s existence and render its duration perpetual by filing a certificate of revival pursuant to section 49 of the General Corporation Law. Subdivision 1 of that section reads in part as follows: Any domestic corporation the term of duration of which has expired under the terms of its certificate of incorporation or last certificate of extension of corporate existence, may, at any time after such expiration, revive its corporate existence and extend it for an additional term or for perpetual duration by filing a certificate which shall be entitled and endorsed ‘ Certificate of revival of existence of ..........’ ”. Subdivision 3 provides that the revival must be approved, in the case of a stock corporation, by the holders of a majority of the shares of each class of stock. Section 49 was enacted to fill a gap in the legislative scheme regarding corporations. Although New York was the first state to adopt a general law for the incorporation of business corporations (L. 1811, ch. 67), it shared, throughout the nineteenth century, the almost universal sentiment that the term of existence of corporate business should not be unlimited. (See Liggett Co. v. Lee, 288 U. S. 517, 554 et seq., per Brandeis, J.; see, also, Ballantine on Corporations [Rev. ed., 1946], § 9, pp. 37-40.) The maximum term for which they could endure was, as in this case, fifty years. Belaxation of this policy limiting corporate existence to a single specified term had already taken place when defendant was organized in 1892. In 1890 (General Corporation Law of 1890, ch. 563, § 22), any corporation, two thirds of its stockholders consenting, was privileged to extend its term for a further period 6 ‘ not exceeding the term for which it was incorporated in the first instance ”, by filing a certificate of extension at any time within three years prior to its expiration (cf. General Corporation Law, present § 45). The next step was taken in 1895; by chapter 671 of the laws of that year, ordinary business corporations could be formed with unlimited duration (Business Corporations Law, § 2). Corporations already organized could not take advantage of the new provision (see People ex rel. Haberman v. James, 5 App. Div. 412, 421-422), but that limitation was removed in 1901 (L. 1901, ch. 355, amdg. General Corporation Law, § 32). And, finally, the same privileges were extended in 1915 to corporations organized under the Transportation Corporations Law (§ 10, as amd. by L. 1915, ch. 677).

These provisions did not eliminate entirely problems stemming from the expiration of charters. Officers and directors of corporations formed when perpetual duration was not available were sometimes unaware, sometimes forgetful, of the limitation, only to discover later that the terms for which the companies had been organized had expired. The sole remedy was an appeal to the legislature for a private act to revive the corporation, and, indeed, a sizeable number of such acts were passed at each session. The pattern was the same in other states, with the consequence that a movement gradually developed for the enactment of general legislation to eliminate the need for private bills. In 1943, the Law Revision Commission of this state, noting that such statutes had been adopted in other jurisdictions, recommended amendment of the General Corporation Law to permit a corporation to file a certificate of revival even after its corporate existence had expired (Report of N. Y. Law Revision Commission, N. Y. Legis. Doc. [1943], No. 65, pp. 365-408). Although the measure originally proposed did not become law, a revised bill, the present section 49, was enacted the following year (L. 1944, ch. 591).

Both its language and its legislative history establish that section 49 applies to corporations which had expired prior to its passage. The wording of its first subdivision — ‘1 Any domestic corporation the term of duration of which has expired ” may “ revive its corporate existence ” — calls for such an interpretation (cf. State ex rel. Nagle v. Leader Co., 97 Mont. 586), and the clear import of subdivision 11 virtually compels it. Enumerating the types of corporations excluded from tho statute’s coverage, that subdivision lists corporations whose stockholders have passed a resolution for dissolution or liquidation * * * [or] whose assets have been distributed * * * in whole or in part " * ® in furtherance of an intention * * # to terminate the corporation’s existence or to liquidate its affairs ”, but not those whose terms had already run out. Bead in its entirety, there can be no doubt that the statute reflects a legislative intent to include corporations already expired, provided the failure to file a certificate of extension before expiration was unintentional — and the Law Bevision Commission’s Beport, to which we have already referred, confirms that conclusion (op. cit., pp. 356, 368, 388-389).

In reaching this result, we have not failed to consider the principle that the law favors a prospective interpretation of a statute wherever possible. While it “ takes a clear expression of the legislative purpose to justify a retroactive application ” (Jacobus v. Colgate, 217 N. Y. 235, 240; see, also, Shielcrawt v. Moffett, 294 N. Y. 180, 188-189), that purpose is here unmistakably indicated. (See, e.g., Matter of Andersen, 178 N. Y. 416, 420; see, also, People ex rel. Huntington v. Crennan, 141 N. Y. 239; McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 51.)

Since section 49, as we read it, authorized the continued existence of defendant corporation, we turn to plaintiffs ’ claim that the legislature exceeded its power in passing it. Plaintiffs contend that, upon the charter’s expiration, they possessed a ££ vested ” right, immune from legislative interference, to have the corporation dissolved and its assets distributed. The claim that ££ vested ” rights have been interfered with is a familiar one in connection with the alteration of corporate charters, and has proved of little, if any, aid in determining either legislative power or legislative intent. (Cf., e.g., Davison v. Parke, Austin & Lipscomb, Inc., 285 N. Y. 500, 509.) Whether the legislature in a particular situation acted beyond its power can only be determined from the nature of the alleged rights and the character of the change the legislature authorized;

Defendant Maid of the Mist, by virtue of section 45 of the General Corporation Law, could undoubtedly have extended its charter just prior to its expiration. That section provides that <£ Any domestic corporation at any time before the expiration thereof, may extend the term of its existence beyond the time specified * * * by filing a certificate !! * * ‘ of extern sion of existence’ ”. Since the prototype of section 45 (General Corporation Law of 1890, ch. 563) was in existence when defendant corporation was organized in 1892, it is hornbook law that that provision became part of the corporate charter, permitting the corporation through a two-thirds vote of its stockholders to extend its existence beyond its specified term, and, accordingly, plaintiffs would have been bound by such an extension. (Cf. Union Hotel Co. v. Hersee, 79 N. Y. 454, 458; Anderson v. International Minerals & Chemical Corp., 295 N. Y. 343, 351; Beloff v. Consolidated Edison Co. of N. Y., 300 N. Y. 11, 19; Ballantine, op. cit., § 273, p. 643; Notes; 105 A. L. R. 1453, 117 A. L. R. 1290.)

In the case before us, the corporation inadverténtly neglected to provide for the extension of its charter during its fifty-year term. There was no thought in anyone’s mind of permitting the company to expire or come to an end. Its business and its activities continued precisely as before, and — prior to the institution of this proceeding — plaintiffs continued, without protest, to enjoy their rights as stockholders in the going enterprise. Section 49 and the revival of the corporation under it only served therefore to remedy an oversight and to allow the regular continuance of the corporate enterprise in accordance with the intent and expectation of all those connected with it. A statute which thus “ simply enlarges ” the term of a corporation involves no “ organic ” change and violates no constitutional prohibition against the passage of retroactive laws. (See Union Hotel Co. v. Hersee, supra, 79 N. Y. 454, 458.)

The power reserved to the state to alter corporation laws and charters is specific and ample warrant for this legislation. (N. Y. Const., art. X, § 1; General Corporation Law, § 5; see, also, Beloff v. Consolidated Edison Co. of N. Y., supra, 300 N. Y. 11, 19; Anderson v. International Minerals & Chemical Corp., supra, 295 N. Y. 343; Matter of Mt. Sinai Hosp., 250 N. Y. 103; Lord v. Equitable Life Assur. Soc., 194 N. Y. 212; McNulty v. W. & J. Sloane, 184 Misc. 835.) The mere ending of the corporate term did not render such- reserve power inoperative. Corporations whose charters may have, expired continue to have a de jure existence for the purpose of winding up their affairs, and, to that end, meetings may be held, corporate property conveyed, suits brought and defended, directors elected and debts paid (General Corporation Law, § 29). In addition, where, as here, a corporation carries on its affairs and exercises corporate powers as before, it is a de facto corporation . as well, and ordinarily no one but the state may question its corporate existence. (See, e.g., Coxe v. State of New York, 144 N. Y. 396, 409; Wilson v. Brown, 107 Misc. 167, affd. 190 App. Div. 926; see, also, Bushnell v. Consolidated Ice Mach. Co., 138 Ill. 67, 73-74; Campbell v. Perth Amboy Mut. Loan Assn., 76 N. J. Eq. 347, 354; Ballantine, op cit., § 34; 8 Fletcher’s Cyclopedia Corporations [Rev. ed., 1931], § 3843, pp. 156-157.)

In point of fact, as already noted, section 49 is limited in its application to corporations which have neither determined to dissolve nor taken steps looking toward dissolution (subd. 11). The statute was not enacted to resuscitate a lifeless corpse or to operate in a vacuum; it was put into the law, and is here invoked, to deal with a truly functioning enterprise. As Judge Sears, sitting at Special Term, sagely observed in Wilson v. Brown (supra, 107 Misc. 167, 174): “If the analogy of physical death is sought to be applied to the expiration of the term of corporate existence of an organization which the law recognizes as a person, it is easy to answer that there is no greater difficulty in considering the organization as existing after its death than before its birth. * * * Such analogies are often misleading. Physical life with birth and death is an evidence of immutable natural law. Corporate life rests upon legislative fiat, and there is no reason to apply such a doubtful analogy to such a case as this, where the same kind of acts, in so far as the corporate character of the same is concerned, were done by men similarly authorized by their associates after, as before, the limit of the term of the corporation’s existence.”

The courts will not fail, then, to look beyond the letter of the corporate charter and apply the legislative mandate to the practical situation which it was designed to meet. Thus, in Delaware & Hudson Co. v. Mechanicville & F. E. R. R. Co. (268 N. Y. 394), this court was asked to rule that an action could not be brought to procure a judgment “ dissolving ” a corporation whose charter had already expired. In holding that such an action would lie, the court declared: “We think that the Legislature so intended. We are not now concerned with legal dialectics hut with practical administration of law ” (p. 398). So, here, it was the legislative design that a corporation such as the one before us might be revived after expiry of the term specified in its charter. Under the state’s broad reserve power, that design must be given effect. (See Union Hotel Co. v. Hersee, supra, 79 N. Y. 454, 458; see, also, Stott v. Stott Realty Co., 288 Mich. 35, 42-43, 46; Diamond State Iron Co. v. Husbands, 8 Del. Ch. 205; State ex rel. Nagle v. Leader Co., supra, 97 Mont. 586; Ballantine, op. cit., § 33.)

Section 49 does not afford minority stockholders who object to the revival of an expired corporation the right to have their stock appraised and receive its value. In approving the bill, Governor Dewey believed that they should be accorded that right and suggested legislation to provide for it (1944 Public Papers of Governor Dewey, p. 248), but his recommendation has not been followed. That omission does not, however, affect the validity of the statute.

The pattern of appraisal provisions is not uniform, and, in this state at least, the right to an appraisal has never been granted in any of the statutes providing for an extension of corporate existence (General Corporation Law, §§ 45, 46). While there are intimations here and there that an appraisal right is provided to eliminate all possible doubt about the constitutionality of a statute authorizing changes in existing corporations (see Bingham v. Savings Investment & Trust Co., 101 N. J. Eq. 413, 419; cf. Albrecht, Maguire & Co. v. General Plastics, Inc., 256 App. Div. 134, 137-138; Nice Ball Bearing Co. v. Mortgage Bldg. & Loan Assn., 310 Pa. 560, 564), the view has been expressed that such a right may neither validate unauthorized action nor render constitutional acts which in its absence would be held to violate due process. (See Levy, Rights of Dissenting Shareholders, 15 Corn. L. Q. 420, 427.) We are not, however, called upon to determine that question since the ‘ change ’ ’ here effected is not so “ organic ” or fundamental as to give rise to any constitutional doubt. (See, e.g., Union Hotel Co. v. Hersee, supra, 79 N. Y. 454, 458.) In short, an appraisal is not provided for in section 49, and none is required to assure its validity. Plaintiffs also urge that the corporation should be required, as a matter of equity, to pay them the cash equivalent of the shares which they hold. Whether such a right may exist apart from statute is not entirely free from doubt (compare Ballantine, op. cit., § 290, pp. 683-684; § 298, p. 700, and Levy, op. cit., 15 Corn. L. Q. 420, 425-426, with Law Revision Commission Report, op. cit., p. 394), but, even assuming that it does exist and that a court of equity may in a proper case direct that dissenting stockholders be paid their interest in cash, it is clear that plaintiffs are not here entitled to such redress as a matter of law. The courts below have concluded that this is not a case for equitable relief, and, without detailing the circumstances that were weighed by them, it is sufficient to observe that we perceive no basis for disturbing their conclusion.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Loughran, Ch. J. Desmond, J.

text:
    Regina Veihelmann, Appellant, v. Manufacturers Safe Deposit Company, Respondent.
    Argued November 26, 1951;
    decided March 13, 1952.

      Ralph Stout and Frederick B. Merkle for appellant.
    I. The relation between plaintiff and defendant was that of bailor and bailee or depository for hire, in that the principles applicable to such a bailment determine the rights and obligations of the parties. (Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 57; Lockwood v. Manhattan Stor. & Warehouse Co., 28 App. Div. 68; Carples v. Cumberland Coal & Iron Co., 240 N. Y. 187; Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266; Moller v. Lincoln Safe Deposit Co., 174 App. Div. 458; McDonald v. Perkins Co., 133 Wash. 622; Schaefer v. Washington Safety Deposit Co., 281 Ill. 43; Pittsburgh Safe Deposit Co. v. Pollock, 85 Pa. 391; Blair v. Riley, 37 Ohio App. 513; Cussen v. Southern California Sav. Bank, 133 Cal. 534; Security Stor. Co. v. Martin, 144 Md. 536.) II. Plaintiff having made out a prima facie case, it was for defendant to explain the disappearance of the money; whether the evidence adduced by defendant was sufficient for that purpose was a question of fact for the jury — it was error for the court to dispose of the question as one of law. (Lederer v. Railway Term. Co., 346 Ill. 140; German Union v. Trust Co., 315 Ill. 204; Sporsem v.
      First Nat. Bank, 133 Wash. 199; Burnell v. New York Central R. R. Co., 45 N. Y. 184; Fairfax v. New York Central & H. R. R. R. Co., 67 N. Y. 11; Cussen v. Southern California Sav. Bank, 133 Cal. 534; Schuster v. Erie R. R. Co., 145 App. Div. 71; Miller v. Ocean S. S. Co., 118 N. Y. 199.)

      Leonard G. Bisco and Henry Landau for respondent.
    I. The ultimate burden of establishing both respondent’s negligence in the operation and maintenance of the vault and its causal connection with the loss rests upon appellant. Respondent was not a depository for hire though the relationship between appellant and respondent has some aspects of a bailor-bailee relationship within the area of its exclusive control. (Sporsem v. First Nat. Bank, 133 Wash. 199; Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 57; Lockwood v. Manhattan Stor. & Warehouse Co., 28 App. Div. 68; Carples v. Cumberland Coal & Iron Co., 240 N. Y. 187; Wells v. Cole, 194 Minn. 275; People v. Mercantile Safe Deposit Co., 159 App. Div. 98; Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266; Claflin v. Meyer, 75 N. Y. 260; Draper v. President, Managers & Co. of D. & H. C. Co., 118 N. Y. 118; Carney v. Bares, 267 App. Div. 175.) II. Plaintiff failed to sustain her burden of proving that the claimed loss was due to defendant’s want of due care in the management and operation of the vault. (Bohmont v. Moore, 138 Neb. 784; Gillett v. Michigan United Traction Co., 205 Mich. 410; Lincoln v. French, 105 U. S. 614; People ex rel. Wallington Apts. v. Miller, 288 N. Y. 31.) III. In the absence of any legally sufficient evidence of want of due care, the trial court properly dismissed the complaint. (Wallach v. Gray’s Sons, Inc., 244 App. Div. 873; Kagan v. Avallone, 243 App. Div. 437; Myers v. Daley, 236 App. Div. 879; Powers v. New York Central & H. R. R. R. Co., 128 N. Y. 659; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Matter of Case, 214 N. Y. 199; Clark v. Harnischfeger Sales Corp., 238 App. Div. 493; Potts v. Pardee, 220 N. Y. 431; Bond v. Smith, 113 N. Y. 378.)
   Loughran, Ch. J.

The gist of the complaint herein can be stated in this single sentence: Ten thousand dollars in currency that had been placed by the plaintiff in a safe-deposit box which she had rented from the defendant company was stolen from that box in consequence of the company’s negligence. The relief demanded by the plaintiff is a judgment for the asserted $10,000 money loss, with interest and costs.

Thus this action was one to recover a sum of money only and, that being so, the issues were properly tried before a jury and were properly submitted to them by the Trial Judge (see N. Y. Const., art. I, § 2; Civ. Prac. Act, § 425). But when the jurors failed to agree he discharged them and granted a motion by the defendant for dismissal of the complaint. The essence of the reason for that disposition of the controversy has been stated by the Trial Judge in this manner: “ The plaintiff, by her testimony that she placed the money in her safe deposit box and that when she later went to her box she found it had disappeared, has established a prima facie case and raised the presumption that the defendant company failed in its duty of exercising a high degree of care. * * *! The detailed and undisputed proof of each of the steps taken by the defendant in guarding the box and barring unauthorized access thereto is sufficient as a matter of law to meet the presumption of the breach of duty raised by plaintiff’s proof. The plaintiff having the burden of proof of showing the breach of duty or want of care on the part of the defendant safe deposit company and having failed to present any evidence on which a finding of want of due care can be based, the defendant is entitled to a dismissal of the complaint.” (198 Misc. 861, 871, 872.) The dismissal of the complaint has been affirmed by the Appellate Division (278 App. Div. 685). Plaintiff is the appellant here.

We agree to the first of the above rulings of the Trial Judge. Indeed the defendant in its brief concedes the correctness of that ruling. But we find ourselves unable to assent to the second ruling of the Trial Judge.

There were five witnesses for the defendant. Four were its own employees, to wit: its general manager, its head locksmith, a custodian of the safe-deposit vault in question, and an attendant who relieved that custodian at luncheon time. The fifth and last witness for the defendant was an employee, in the personnel department of Manufacturers Trust Company, an affiliate of the defendant. None of these witnesses for the defendant had anything to say in respect of a disappearance of currency from the plaintiff’s safe-deposit box.

The following facts were undisputed: The door and lock to that box were well made and were of a type used by numerous safe deposit companies; access to the box could be had only by means of a customer’s key or a duplicate thereof, and then only after the lock had been prepared through the use of a master key held by the defendant; there was no sign of a forcible entry of the box when it was examined following the assertion by the plaintiff of a loss of her currency; the defendant had dominion over its safe-deposit vault and a surrounding area; persons had on occasion gained admission to the vault without identification; no record was kept of the people who came in or went out; ordinarily only one employee of the defendant was in charge of the vault and of the more than nineteen hundred safe-deposit boxes that were enclosed therein.

The question of negligence is for a jury when there is a conflict in the evidence or when, though there is no such conflict, fair-minded men can draw more than one inference from the undisputed facts (Mead v. Parker, 111 N. Y. 259, 262; Salt Springs Nat. Bank v. Sloan, 135 N. Y. 371, 384). In our judgment, fair-minded jurors could here reasonably have inferred from the undisputed facts a failure of the defendant to exercise in respect of its safe-deposit vault the due care and caution that were required during the period here in question. In that view, the issue of negligence was not for the Judge in this case but should have been left to the jury (see 9 Wigmore on Evidence, § 2487).

As we understand the words we have quoted from the opinion of the Trial Judge, he found that all who gave testimony herein were truthful witnesses. To our minds, that finding was an invasion of the right of the plaintiff to have the jury pass upon the credibility of the witnesses (cf. Loewinthan v. Le Vine, 299 N. Y. 372).

The judgments should be reversed and a new trial granted, with costs to abide the event.

Desmond, J.

(dissenting). Plaintiff’s testimony was only this: that when she came to look for her money theretofore placed in her safe-deposit box in defendant’s vaults, the money was missing therefrom. Her complaint had alleged that “ through the negligence of the defendant the same had been theretofore taken and stolen from said safe deposit box ”. As in every other negligence case it was, of course, the burden of plaintiff to establish that the loss came about because of defendant’s failure to exercise due care. There was no affirmative proof at all as to how, when or by whom the removal from the box was effected. If leaving the money in the box had amounted to a bailment thereof from plaintiff to defendant, plaintiff would have carried her burden of proof by showing the nonreturn by defendant of the bailed property. The case would then have been one where “the failure * * * to produce the subject of bailment when demanded, prima facie established negligence and want of due care ” (Burnell v. New York Central R. R. Co., 45 N. Y. 184, 189; Fairfax v. New York Central & H. R. R. R. Co., 67 N. Y. 11, 14). But if the relationship was not that of bailor-bailee, then the dismissal of the complaint was correct, since, if the presumption available to bailee is not here available, there was (unlike Rehmer v. Cappel, 246 N. Y. 613) no proof that any negligence of defendant caused or contributed to plaintiff’s loss of her currency.

Was it a bailment? Did defendant, leasing to plaintiff a box in defendant’s vaults, with the usual double-lock system whereby each party had to produce a separate key for a separate lock in order to open the box, make defendant a bailee of whatever plaintiff put into the box, even when, as here, defendant never saw or handled the property, or knew of its existence? A number of decisions, in other States, say that this is a true bailment, and that there is applicable thereto the traditional law of bailment, which sets up a presumption of negligence from mere proof of delivery, and, on that mere showing, puts a defendant bailee to its excuses, if it has any. But this court, in its only modern statement on the subject, has taken a different view, and, we think, correctly, logically and justly. In Carples v. Cumberland Coal & Iron Co. (240 N. Y. 187, 192), it is said: “ While the status of the Safe Deposit Company is, therefore, in some aspects that of a bailee, the customer’s control and possession of his box is not much different than would be the control and possession by a tenant of property in an office which he had rented from the owner of the building ” (cited in Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266, 269). That language was designed to point out that, as to property left in a safe-deposit box, the box holder himself retains a measure of control and possession. That being so, there is no bailment, since a necessary feature of every bailment is a transfer of possession to the bailee (Lawson on Bailments, p. 10; Schouler’s Bailments and Carriers [3d ed.], p. 2; Phelps v. People, 72 N. Y. 334, 357; Collins v. Bennett, 46 N. Y. 490, 494; 6 Am. Jur., Bailments, p. 178, 189; 8 C. J. S., Bailments, p. 222; Sturm v. Boker, 150 U. S. 312, 329). One of the essential elements of a bailment is that the property be taken into the possession of the bailee ” (Osborn v. Cline, 263 N. Y. 434, 437). “ It is the element of lawful possession, however created, and duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense ” (Foulke v. New York Cons. R. R. Co., 228 N. Y. 269, 275; Armstrong v. Sisti, 242 N. Y. 440, 444). “ A bailment implies the delivery of a chattel; and to subject one to liability as a bailee it is a constituent that he had voluntarily assumed or retained the custody of the chattel alleged to have been bailed ” (Pattison v. Hammerstein, 17 Misc. 375, 376). In other words, the common law, with its characteristic horse-sense, makes a virtue out of necessity growing out of the fact that, where the bailee has the exclusive and undivided possession of the goods, he must also have the exclusive means of showing what became of them. Where the reason of the law ceases, the law ceases. For reasons which must be perfectly manifest to any thinking person, the rule referred to does not obtain or apply where the bailee does not have the exclusive and undivided possession of the property ” (Lemnos Broad Silk Works v. Spiegelberg, 127 Misc. 855, 858).

The reason for the rule which creates a presumption of negligence from a mere nondelivery of a bailed chattel, is stated plainly in our cases. “ This rule proceeds either from the assumed necessity of the case, it being presumed that the bailee has exclusive knowledge of the facts and that he is able to give the reason for his non-delivery, if any exist, other than his own act or fault, or from a presumption that he actually retains the goods and by his refusal converts them ” (Claflin v. Meyer, 75 N. Y. 260, 262, citing Schmidt v. Blood, 9 Wend. 268). Neither of those presumptions can have any reasonable relation to the loss of an article from a safe-deposit box, when the box can be opened only by joint use of two different kinds of keys held by lessor and lessee, respectively, and where the lessor of the box has not in any manner taken custody of the property in the box, but has merely made the use of that box available to the lessee customer. This was not a bailment since defendant never had any custody of the money — certainly not the exclusive custody and possession thereof. The peculiar rules as to proof in bailment cases have, therefore, no application, and, since any recovery by this plaintiff was solely on the bailment rule, there was a failure of proof, and the complaint was rightfully dismissed.

There is another reason why defendant, after all the proof was in, was entitled to judgment. “ If, either in the course of his [plaintiff’s] proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence ” of the alleged bailee (Claflin v. Meyer, supra, p. 264; Castorina v. Rosen, 290 N. Y. 445, 447). Even a bailee for hire,“ is only bound to take the same care of the goods as of his own, and if they be stolen or embezzled by his servant, without gross negligence on his part, he is not liable ” (Schmidt v. Blood, supra, p. 271). If, as the jury could have found on her testimony, this plaintiff did leave the currency in the box and did not herself take it out, then its removal therefrom must have been a theft. Indeed, the complaint alleges that it was “stolen ”. There is nothing in this testimony from which it could be found that any negligence of defendant had anything to do with that theft, so defendant was not liable, under the rule of the cases just above cited in this paragraph.

The judgment should be affirmed, with costs.

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

Judgments reversed, etc.


author: Lewis, J.

text:
    Le Roy Moore, Respondent, v. Isidor Leventhal et al., Doing Business under the Name of Veteran Auto Parts Co., Appellants.
    Argued January 9, 1952;
    decided March 13, 1952.

      Joseph F. Soviero, Jr., for appellants.
    I. There was error in permitting the examination of the police officer with respect to the contents of a book not in evidence, and in excluding the police blotter report. (Cellamare v. Third Ave. Tr. Corp., 273 App. Div. 260; Crawford v. Nilan, 289 N. Y. 444; Ferris v. Sterling, 214 N. Y. 249.) II. The trial court erred in restricting the cross-examination of plaintiff upon his criminal record and presentation of proof with respect thereto. (Derrick v. Wallace, 217 N. Y. 520.) III. Plaintiff was guilty of contributory negligence as a matter of law.

      Frank B. Gass and Preston H. Mayle for respondent.
    I. The police blotter was properly excluded from evidence. (Johnson v. Lutz, 253 N. Y. 124; Crawford v. Nilan, 289 N. Y. 444; Ellicott v. Pearl, 10 Pet. [U. S.] 412.) II. The trial court properly excluded the record of convictions of plaintiff. (Derrick v. Wallace, 217 N. Y. 520.) III. The verdict was a proper one and should not be disturbed. (Miueli v. New York & Queens Co. Ry. Co., 136 App. Div. 373; Sawalsky v. Pennsylvania R. R. Co., 39 App. Div. 661; Hallahan v. New York, L. E. & W. R. R. Co., 102 N. Y. 194.)
   Lewis, J.

The automobile traffic accident which gave rise to this action occurred at the intersection of Union Avenue and Boston Post Road in the borough of The Bronx, New York City. At that intersection, where the flow of traffic is controlled by traffic control signals, the plaintiff was struck and injured by a truck owned by the defendant company and then operated by the defendant Leventhal.

The plaintiff testified that, while crossing from the east to the west side of the Post Road, a short distance north of its intersection by Union Avenue, he was struck by the defendant’s northbound truck at a time when traffic signals were red for vehicles moving north and south on the Post Road. At that time, according to the plaintiff and one of his witnesses, all northbound traffic, except the defendant’s truck, was stopped. The plaintiff’s evidence bearing upon traffic conditions at the time and place of the accident was denied by the defendant Leventhal who testified that at the time he passed northbound through the intersection the traffic lights were green for vehicles moving north and south on the Post Boad.

The decisive issue of fact thus created was supported by substantial evidence and was resolved in plaintiff’s favor by a jury verdict at Trial Term. As the judgment entered thereupon was thereafter affirmed at the Appellate Division, one Justice dissenting, we must affirm the judgment unless evidentiary rulings, challenged by the defendants-appellants, are such as to require reversal and a new trial.

The plaintiff testified that, when he stopped at the east curb of the Post Boad and was about to cross to the west side, he looked at the traffic light and observed that it was green for his crossing; that the traffic light was then red against north and south traffic on the Post Boad and that such traffic had then stopped. Upon this item of proof plaintiff’s testimony was corroborated by a pedestrian who, like the plaintiff, was standing on the east side of the Post Boad near the intersection waiting for the green light to permit his crossing.

In opposition to plaintiff’s evidence upon this important phase of the case the defendants called the police officer who had responded to a call sent out when plaintiff was injured and had reached the site of the accident before the plaintiff'was removed by ambulance. At that time and place, when plaintiff was conscious, the police officer questioned him in detail as to how the accident happened with special reference to what plaintiff observed as to the traffic control signals. The officer’s testimony was as follows:

“ Q. What did he [plaintiff] tell you about the condition of the traffic lights? A. He told me that traffic was going north and south, the condition, that is, the lights were working north and south, traffic was moving north and south on Boston Boad.
Q. When he crossed the street? A. That is right.
Q. And did you so put down in your report, in the official police report you filed? A. That is right, I did.
Q. Is that a copy of your report? A. That is.
Mr. Christensen [attorney for the defendants]: May we have this marked for identification?
(Two slips of paper marked Defendants’ Exhibit C for identification.) ” (Emphasis supplied.)

Upon cross-examination of this witness counsel for the plaintiff questioned him concerning a little ‘ ‘ black book ’ ’ ordinarily carried by policemen in which are noted the facts of accidents under investigation. The witness was permitted, over objection by the defendants, to state that there was nothing in his black book with regard to any statement by the plaintiff at the time of the accident, nor was there any note relating to the condition of traffic lights or the movement of traffic on the Post Eoad when the plaintiff was injured. Plaintiff’s counsel also adduced from the police officer the fact that one month before the trial he had been unable to recall any of the conversation had with the plaintiff at the time of the accident. Obviously such cross-examination was designed to implant in the minds of the jury the belief that the police officer’s testimony, bearing upon admissions made to him by the plaintiff at the time of the accident as to the condition of the traffic lights and of traffic north and south on the Post Eoad, was the result of recent fabrication. To overcome the inference of recent fabrication, the defendants endeavored on redirect examination — by questions directed to the police officer and by offering in evidence the police report filed by him — to show the contents of the police report. That report — which had been previously marked for identification — contained a notation consistent with the police officer’s recital on direct examination of the statement, made to him by the plaintiff, that at the time and place of the accident traffic was moving north and south. On plaintiff’s objection the trial court excluded from evidence for the jury’s consideration testimony by the police officer as to the contents of the report he had filed and refused to receive the report itself in evidence.

In the circumstances disclosed by this record we think the rejection of the evidence last mentioned above — which was consistent with and supported the police officer’s direct testimony and was offered to overcome the inference that his direct testimony had been the product of recent fabrication — was reversible error. ‘1 The rule is that where the testimony of a witness is assailed as a recent fabrication, it may be confirmed by proof of declarations of the same tenor before the motive to falsify existed. (People v. Katz, 209 N. Y. 311, 337; Matter of Hesdra, 119 N. Y. 615.) ” (Ferris v. Sterling, 214 N. Y. 249, 254.)

As the error mentioned above calls for a new trial of this case, we mention another evidentiary ruling which, in our view, was properly challenged by the defendants. We have seen that sharp issues of fact developed on the trial as to whether — as claimed by the plaintiff — the color of the controlling traffic light at the time and place of the accident was favorable to plaintiff’s crossing the Post Eoad from east to west; or whether —■ as claimed by the defendants — traffic on the Post Eoad was then moving north and south. Upon that controverted phase of the case the plaintiff gave testimony which, if believed by the jury, afforded substantial support for his position. As the plaintiff’s credibility thus became an important factor, counsel for the defendants, in the course of cross-examination, inquired of the plaintiff whether he had ever been convicted of a crime. The plaintiff answered in the affirmative. Thereafter, when defendants’ counsel pursued that line of cross-examination and inquired of plaintiff whether on a given date he had been convicted of a specified crime, plaintiff’s counsel objected “ on the ground he [plaintiff] was asked if he was convicted of a crime and his answer was yes, and that any other questions do not go against his credibility.” That objection was sustained by the court. At a later point in the cross-examination, when plaintiff was asked whether he had ever been convicted of picking pockets, the court sustained the objection on the ground that “ He [plaintiff] hasn’t denied that he was convicted on several occasions.”

We do not think an admission by a witness under cross-examination that he has been convicted of a crime serves to deprive the cross-examiner of the right to show the conviction. The scope of such inquiry, as defined by section 350 of the Civil Practice Act, is not so limited: A person who has been convicted of a crime is, notwithstanding, a competent witness in an action or special proceeding; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any question relevant to that inquiry; and the party cross-examining him is not concluded by his answer to such a question.” (See, also, Derrick v. Wallace, 217 N. Y. 520, 525.) The Legislature has also prescribed the method by which a conviction may be proved. (See Code Crim. Pro., §§ 482-a, 724, 746.)

The judgments should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


author: Desmond, J.

text:
    The People of the State of New York ex rel. Mollie Portnoy, Respondent, against Ann Strasser, Appellant.
    Argued January 24, 1952;
    decided March 13, 1952.

      Henry Epstein, Bennett D. Brown, Mildred Roth and Hope R. Stevens for appellant.
    I. The right of a child to the care and society of her mother, and the right of a mother to the custody of her own child, are paramount rights which must be upheld in the absence of convincing evidence that the mother is unfit to exercise such custody. (Matter of Thorne, 240 N. Y. 444; Matter of Thoemmes, 238 App. Div. 541; People ex rel. Grament v. Free Synagogue Child Adoption Comm., 194 Misc. 332; People ex rel. Hydock v. Greenberg, 273 App. Div. 710; People ex rel. Armour v. Armour, 147 Misc. 313; Matter of Livingston, 151 App. Div. 1; People ex rel. Boulware v. Martens, 232 App. Div. 258, 258 N. Y. 534; Matter of Bock, 255 App. Div. 862; Matter of Stuart, 255 App. Div. 811; People ex rel. Hausler v. Stegmeier, 240 App. Div. 901, 264 N. Y. 483.) II. The court below violated the natural, legal and constitutional rights of appellant and abused its discretion in taking custody of the child from appellant. (Pierce v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 390; People ex rel. Sisson v. Sisson, 271 N. Y. 285; Stromberg v. California, 283 U. S. 359; Matter of Kananack, 272 App. Div. 783; Matter of Lewis v. Spaulding, 193 Misc. 66; Matter of Vardinakis, 160 Misc. 13; Shelley v. Kraemer, 334 U. S. 1.)

      Osmond K. Fraenkel for New York City Committee of the American Civil Liberties Union, amicus curiæ, in support of appellant’s position.
    Irrelevant to any proper proceeding for the custody of a child-is the question of religion. It is well settled that the State has no power to interfere with a parent’s religious upbringing of a child. (Pierce v. Society of Sisters, 268 U. S. 510; Board of Education v. Barnette, 319 U. S. 624; Lewis v. Board of Educ. of City of N. Y., 157 Misc. 520.)

      George H. Cohen for New York City Chapter of the National Lawyers Guild, amicus curiæ, in support of appellant’s position.

      Moses Kaplan for respondent.
    I. The Appellate Division and the trier of the facts, with ample evidence in the record, properly exercised their discretion in awarding custody to relator. (People ex rel. Destasio v. Perruzza, 277 App. Div. 996; Braunworth v. Braunworth, 285 N. Y. 151.) II. The record shows appellant’s utter neglect of the child.
   Desmond, J.

The order appealed from directs that Robin Strasser, born May 7,1945, be taken from the custody of defendant, her mother, and delivered to the custody of relator, the child’s maternal grandmother, the mother being allowed by the order to have the child, during daytime hours, on Saturday and Sunday of each week. The petition for habeas corpus, which commenced this proceeding, alleged that it was against the best interests of the infant to permit her to live with her mother since, according to the petition, the mother is unable properly to maintain and rear the child, that the mother is a communist, without any regard for religious upbringing of the child, and that she is married to a second husband who is of a race and religion different from that of the child. The Official Referee decided against the mother, as we read his decision and order, solely because, as he found, the mother had negleetéd the child’s care and training because of other activities in which the mother participated, and that this neglect included the placing of the child in a day nursery from nine o’clock in the morning until five o’clock in the afternoon. The Referee, for those reasons, apparently, determined that the mother is not a fit or proper person to have the custody of said infant. ” Concluding that the grandmother is a fit, competent and proper person who wants the child solely for motives of affection and to give the child the right kind of care and religious and other education, the Referee ordered that this little girl, now six and a half years old, be taken from her mother’s home and removed to that of her grandmother.

Questions of custody are, generally, for the Supreme Court, in its discretion, and it is rarely that any such determination by it can raise any question of law for us. But that discretion is not an absolute or uncontrolled one (see Bunim v. Bunim, 298 N. Y. 391). No court can, for any but the gravest reasons, transfer a child from its natural parent to any other person (People ex rel. Boulware v. Martens, 232 App. Div. 258, affd. 258 N. Y. 534; People ex rel. Hausler v. Stegmeier, 240 App. Div. 901, affd. 264 N. Y. 483; Matter of Thorne, 240 N. Y. 444; Domestic Relations Law, § 81), since the right of .a parent, under natural law, to establish a home and bring up children is a fundamental one and beyond the reach of any court (Meyer v. Nebraska, 262 U. S. 390, 399).

We do not have here one of those unhappily frequent cases where the contest is between parents and the courts must make the best available choice. Nor is this a case where a parent has left a child with relatives for a long time, then seeks it back (see Matter of Benning [Nigro], 303 N. Y. 775). Here a grandparent has assumed the very heavy burden of proving that a little girl should, by court order, be separated from her own and her mother’s home. To sustain that burden, relator must do more than prevail on a simple factual issue as to which are the better surroundings, or as to which party is better equipped to raise the child. Quoting a famous case: “ The dilemma, it would seem, is this: Shall she be ignored as an outcast or recognized as a mother? If she is not to be ignored, if the child is still her child, her rights must be regarded. Her right as a parent, not as a married woman, to the care and custody of the child becomes superior to that of all others unless it- should be shown anew by the child’s relatives or custodians that she is an unfit person to exercise such guardianship ” (Matter of Thorne, supra, pp. 449-450; see Matter of Livingston, 151 App. Div. 1, 7, and People ex rel. Beaudoin v. Beaudoin, 126 App. Div. 505, affd. 193 N. Y. 611). It is significant that the several counsel who have filed briefs on this appeal have found no reported New York case where, for any reason, a small child has been ordered delivered from the custody of a decent parent in a decent home into the hands of others.

With those fundamentals before us, we look at the testimony on which was grounded the finding of this mother’s neglect. Born in May, 1945, Robin Strasser lived in the home of her parents until they separated about a year later. Mother and child then went to live with relator and the latter’s husband and grown-up son, in their small New York City apartment. Sometime in 1947 defendant took up her residence in another apartment and the infant continued to live with her grandparents. Later (November, 1947) defendant obtained a divorce in this State from her husband, the decree awarding her sole custody of the child, also an award of support money which, except for a few installments, has not been paid by the father. (The father was not a party or a witness here, but the record contains a letter from him dated January 10, 1950, in which he says he will not consent to the child living with anyone other than defendant.) The child lived, thereafter, in the grandparents’ apartment until sometime in 1948. Then, for a few months, the child resided with both her mother and grandmother, being cared for in a day nursery five days a week, and staying with her grandparents over the week ends. Late in 1948, defendant took Robin to live with her, and with her the child has ever since remained (the operation of the order below has been stayed).

In 1949, defendant, a Caucasian of Jewish parentage, married her present husband, a Negro. Defendant is now about twenty-six years old, and her husband, about thirty-two years of age, is said to be a man of fine character, steadily employed at a good salary. Defendant has had no other children. The grandmother described defendant’s present apartment as dirty and ill-furnished, but several witnesses (and a number of photographs) disputed this, and the Referee does not seem to have based his findings on any such alleged fact. If this were a case where a comparison of the physical aspects of the two homes would be appropriate, it might be said that defendant’s home is not inferior to that of relator. But no such disparity would be material, unless conditions were such as to make living there: harmful to the child, and the family physician testified that this little girl is well adjusted and well cared for in a healthful, sufficient home.

After her marriage, defendant continued to hold an outside job and to take the girl daily to a nursery school, but in an affidavit submitted to, and considered by, the Referee on a motion for reargument before the entry of the order here appealed from, defendant told the court that she had given up her employment, was caring for the child daily at home and intended to continue so to do, all of which is undisputed.

The finding, then, that this mother so neglected her little girl as to justify a change in custody, must have been based on one or more of these considerations: first, that communistic activities occupied the mother’s attention; second, that the mother went out to work and left the infant in a day nursery and nursery schools, and, third, that the child was not being trained in the religion in which it was born. The testimony (vehemently denied by defendant) as to membership and work in alleged communistic “ Front ” organizations was as of a period long before the trial and there was nothing to show that such associations continued, or that they were such as to make the mother unfit to rear her own infant. Outside employment and the use of nursery schools by a mother are not things that courts should try to control, and it appears that both have come to an end, anyhow. As to the mother’s failure to train the little girl in the faith of her fathers, that, too, is within the parent’s sole control (Meyer v. Nebraska, supra; Pierce v. Society of Sisters, 268 U. S. 510; Matter of Zorach v. Clauson, 303 N. Y. 161). We conclude that there is here no such proof of neglect as would authorize any court to take an infant from its mother, or interfere in the internal arrangements of family life (see People ex rel. Sisson v. Sisson, 271 N. Y. 285).

The order should be reversed, without costs, and the writ dismissed.

Loughran, Ch. J., Lewis, Conway, Dye, Fulo and Froessel, JJ., concur.

Order reversed, etc.