author: Lehman, Ch. J.

text:
    In the Matter of Good Humor Corporation, Appellant, against Joseph D. McGoldrick, as Comptroller of the City of New York, Respondent.
    Argued December 1, 1942;
    decided January 14, 1943.

      J. Hampden Dougherty, Edward H. Hart and Stephen J. Lucey for appellant.
    Human foodstuffs are exempt from the tax and the products of the petitioner are all in the exempt class. (Howitt v. Street & Smith Pub. Inc., 276 N. Y. 345; United States v. Johnston, 124 U. S. 236; Brewster v. Gage, 280 U. S. 327; People ex rel. Mutual Trust Co. v. Miller, 177 N. Y. 51.) Until July 1, 1938, ah milk products were exempt; hence the assertion that sundaes and Good Humors are confectionery affords no justification for taxing sales thereof during the period January 1,1937 to June 30,1938. (Matter of Budd v. Valentine, 283 N. Y. 508; Taylor v. Prudential Ins. Co., 142 Misc. 94; Matter of N. Y. Cable Ry. Co., 40 Hun, 1; Merkling v. Ford Motor Co., 251 App. Div. 89; Mortion v. Horton, 189 N. Y. 398; Matter of Hering, 133 App. Div. 293; Matter of Buoneto v. Buoneto, 254 App. Div. 688; People ex rel. N. Y. M. & N. T. Co. v. Gaus, 198 N. Y. 250.) The fact that petitioner’s food products are neither candy nor confectionery invalidates the entire assessment. (Hutchison Ice Cream Co. v. Iowa, 242 U. S. 153.)

      Kenneth M. Spence and Soia Mentschikoff for F. H. Anderson and others, doing business as Canteen Company, amicus curiæ.

      William C. Chanler, Corporation Counsel (Edmund B. Hennefeld, Arthur A. Segall, Sol Charles Levine and Jacob Slove of counsel), for respondent.
    The petitioner’s confected products, as distinguished from plain ice cream, are taxable as falling within the general coverage of the law and as excluded from the exemptions. (Louisville Gas & Electric Co. v. Coleman, 277 U. S. 32; Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153; Andrews v. Tax Commission, 135 Ohio St. 374; Helvering v. N. Y. Trust Co., 292 U. S. 455.)
   Lehman, Ch. J.

In 1937 and 1938, the petitioner Good Humor Corporation was engaged in the business of selling at retail certain products known as Good Humor sticks,” “ sundae cups,” and “ water ice cups.” The Comptroller of the city of New York has determined that Local Laws 31 of 1936 and 20 of 1937 and 21 of 1938 impose a sales tax of two per cent upon the receipts from the sale of these products in the city of New York. In a proceeding brought by the petitioner to review this determination, the Appellate Division has confirmed the determination.

Local laws in effect in 1937 and 1938 imposed a tax upon the receipts from every sale in the city of New York, as follows:

“ (a) .Tangible personal property sold at retail, except those articles described in Schedule ‘ A ’ below: *******
SCHEDULE A
Cereals and cereal products;
Milk and milk products, other than candy and confectionery;
Meat and meat.products;
Fish and fish products;
Egg and egg products;
Vegetables and vegetable products;
Fruits, spices and salt;
Sugar and sugar products, other than candy and confectionery;
Coffee and coffee substitutes; beer or other similar malt beverages; tea, cocoa and cocoa products, other than candy and confectionery;
Water, when delivered to the consumer through mains and pipes;
Drugs and medicines sold upon a physician’s prescription;
Newspapers and periodicals.”

The words “ other than candy and confectionery ” after “ Milk and milk products ” were added only in July, 1938, by Local Law 21 of 1938. For the purposes of this appeal we assume without further consideration that the amendment of Schedule A in 1938 merely expressed a qualification or limitation which previously was clearly implied and made no change in the scope of the taxing statute.

Upon that assumption the products of the petitioner are subject to the tax if they come within the classification of “ candy and confectionery.” Otherwise they are “milk products” or “sugar products ” which are not subject to tax. “ Good Humor sticks ” are calces of ice cream with a coating of chocolate about one sixty-fourth of an inch thick. A stick is inserted to hold the product. Ice Cream sundaes consist of ice cream with a “ topping ” of flavored syrup. Water ice is made principally of sugar and water. The classification of “ candy and confectionery ” cannot be exactly defined. Coneededly it covers, a wide variety of articles usually made and sold in the “ confectionery ” business. Confectioners usually made and sell ice cream, water ices, sugar-coated cakes and other articles which are also made in the home or in bakeshops, and which are sold perhaps as much in other places of business as in confectionery shops. For some purposes such articles might be classified as candy or confectionery, not for all. The line it is said must be drawn somewhere, and the Comptroller has chosen to draw the fine between ice cream without a chocolate coating and ice cream with “ Good Humor ” coating or “ Good Humor ” sundae.

The determination of what articles or transactions are taxable is a legislative function. It is not the function of an administrative officer to determine where the line shall be drawn which divides the- field subject to taxation from the field where no tax has been imposed. That line must be drawn by statute or ordinance. The tax authorities have power only to determine whether an article comes within the field selected in the ordinance for taxation. Where the facts are not disputed, the question whether a particular article falls within that field is a question of law.

This court has .said that “ A statute which levies a tax is to be construed most strongly against the government and in favor of the citizen. The government takes nothing except what is given by the clear import of the words used, and a well-founded doubt as to the meaning of the act defeats the tax.” (People ex rel. Mutual Trust Co. v. Miller, 177 N. Y. 51; People ex rel. New York M. & N. T. Co. v. Gaus, 198 N. Y. 250.) That well-established rule applies in this case. It is not quite accurate to say that articles enumerated in Schedule A have been “ exempted ” from the general sales tax. Rather it is true that the field selected for the tax law does not cover the articles enumerated in Schedule A. The products of Good Humor Corporation are, it is clear, “ milk products ” and sugar products,” and only by giving a very broad construction of doubtful validity to the limitation “ other than candy and confectionery ” can these products be included in the limitation so described.

For these reasons the ofder of the Appellate Division should be reversed and the determination of the respondent .annulled, with costs in this court and in the Appellate Division.

Loughran, Fin£h, Rippey, Lewis, Conway and Desmo'nd, JJ., concur.

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Accounting of First Trust and Deposit Company, as Executor of Georgia E. Chamberlin, Deceased, Respondent. Harold O. Chamberlin, Appellant; G. Everett DeMore, Special Guardian for Richard C. Corless et al., Infants, Respondents.

      Argued October 22, 1942;
    decided January 14, 1943.

      Matteo Milazzo for appellant.
    The fifth article of the will creates a spendthrift trust and not an annuity. (3 Heaton on Surrogate’s Court, § 314; 3 Bradford Butler, New York Surrogate Law Practice, § 2009; Matter of Ableser, 32 N. Y. S. (2d) 343; 2 David’s New York Law of Wills, § 852; Matter of Gobel, 141 Misc. 503; Matter of Wentworth, 230 N. Y. 176; Matter of Clark, 280 N. Y. 155; Rezzemini v. Brooks, 236 N. Y. 184; Matter of Martin, 269 N. Y. 305.) Neither the executor nor the trustee has the right to retain appellant’s benefits. (Matter of Bogert, 41 Misc. 598; Cochrane v. Schell, 140 N. Y. 516; Matter of Ungrich, 201 N. Y. 415; Matter of Flint, 118 Misc. 354; Matter of Temple, 36 Misc. 620.) The intent of the testatrix is paramount. (7 Heaton on Surrogate’s Courts, § 389; Matter of Rooker, 248 N. Y. 361.) The [will discharged the note's. (2 David’s New York Law of Wills of 798; Matter of Fowles, 222 N. Y. 222; Webster v. Gray, 54 Hun, 113; Eden v. Smyth, 5 Ves. 354; Zeigler v. Eckert, 6 Penn. St. 13.)

      David A. Fraser for respondent.
    The letter by the testatrix to her attorneys, requesting them to destroy the promissory notes evidencing her son’s indebtedness, was without legal effect. (Morris v. Sickly, 133 N. Y. 456; Matter of Cameron, 278 N. Y. 352; Matter of Hoffman, 201 N. Y. 247; McLean v. Freeman, 70 N. Y. 81; Matter of McCafferty, 142 Misc. 371; Vincent v. Rix, 248 N. Y. 76; Matter of Green, 247 App. Div. 540; Matter of Fitzpatrick, 17 N. Y. S. (2d) 280; McCarthy v. Pieret, 281 N. Y. 407.) An annuity, rather than a spendthrift trust, is provided under the will; and in either case the respondent executor and trustee, should apply the payments against the appellant’s debt. (Wells v. Squires, 117 App. Div. 502; 191 N. Y. 529; Matter of Trumble, 199 N. Y. 454; Matter of Bowman, 159 Misc. 588; Matter of Fowler, 263 App. Div. 255; 288 N. Y. 697; Smith v. Kearney, 2 Barb. Ch. 533; Leggett v. Leggett, 24 Hun, 333; Matter of Foster, 38 Misc. 347; Matter of Cramer, 166 Misc. 713; Matter of Sawin, 173 Misc. 428; Voorhees v. Voorhees, 18 N. J. Eq. 223; Chafee v. Maker, 17 R. I. 739; Brown v. Sperry, 182 Miss. 488.)

      G. Everett DeMore, special guardian for Richard C. Corless et al., infants, respondents.
    The intention of the testatrix must be ascertained from the will itself. (Matter of Silsby, 229 N. Y. 396; Matter of Tamargo, 220 N. Y. 225.) Written or oral declarations of the testatrix are inadmissible to vary, contradict, or explain the intention expressed in her will. (Williams v. Freeman, 83 N. Y. 561; Teetsell v. Ross, 201 App. Div. 826; 234 N. Y. 633; Matter of Hughes, 225 App. Div. 29; 251 N. Y. 529; Matter of Stulman, 146 Misc. 861.)
   Lehman, Ch. J.

The testatrix left her surviving a daughter and a son. She provided in the Fifth paragraph of her will that her residuary estate should be divided into two parts one of which parts shall exceed the other by the sum of Five Thousand ($5000.00) Dollars.” The larger of such parts the testatrix bequeathed to her daughter. The smaller of such parts the testatrix bequeathed to the executor and trustee named in her will in trust To receive, hold, manage, invest and reinvest the same, and to collect, recover, and receive the interest, income, and profits therefrom, and after deducting taxes, commissions, and all lawful charges, to pay over the net income in monthly installments to my son, HAROLD 0. CHAMBERLIN, for and during his natural life. Upon the exhaustion of the principal of the trust created under the residuary clause of my late husband’s will for the use of the said HAROLD 0. CHAMBER-LIN, I direct that my Trustee thereafter pay over in monthly installments to my son, HAROLD O. CHAMBERLIN, such amount of the principal of this trust as together with the income from the trust will equal the sum of Eighty ($80.00) Dollars per month. I authorize and empower my Trustee in its sole discretion to pay over to my said son from time to time such portions of the principal as may be necessary and proper, having regard for any and all other sources of income of my said son, to pay expenses due to emergencies such as illness, operations, hospital, nursing, doctor bills, and the like on the part of my said son.” The testatrix bequeathed the principal of the trust fund remaining at the death of the life beneficiary to his son, if living.

After the will was executed the testatrix made two loans to her son for sums aggregating six thousand dollars, and at her death held his promissory notes for that amount. First Trust & Deposit Company of Syracuse, named in the will as executor and trustee, has included in its petition for the settlement of its intermediate account, and in its account, the said notes as assets of the estate and has asked that it be authorized and directed “ to retain the income and principal payments otherwise due to the said Harold O. Chamberlin, beneficiary, under Article Fifth of the Will, until such time as the total of such retained income and principal payments, with interest earned thereon, equals the indebtedness of the bene'ficiary with interest as specified in the two notes aforesaid.”

At the hearing of objections filed by Harold 0. Chamberlin, the objectant showed by evidence which was not contradicted that the testatrix in the presence of her son, the objectant, stated to others that “ she didn’t want Harold to pay the notes;” and that she signed and placed in her safe a memorandum addressed to Fraser Brothers, her attorneys who now appear as attorneys for the executor, stating: Kindly destroy notes signed by Harold 0. Chamberlin, which are held by you, before anything is done towards settling my estate.” The attorneys for the executor objected to the introduction of this evidence and moved to strike it out on the ground that it is irrelevant, merely testimony as to the declarations of the decedent in her Ufe time and without foundation to show any gift or testamentary act on the part of the testatrix.” The motion was denied. The executor then moved to dismiss the objections and when the Surrogate reserved decision on that motion, stated: “ The executor will stand on its motion to dismiss the objections and will not submit any proof.” Thereafter the Surrogate dismissed the objections and a decree was entered which adjudged that the promissory notes are vahd and enforceable, and directed the executor and trustee “ to retain the income and principal payments otherwise- due to Harold 0. Chamberhn * * * until such retained amounts equal the indebtedness on said notes.”

The notes executed by the objectant are vahd instruments. They were executed after the will was made, and by no possible construction of the will can we read into the will an intention to forgive any indebtedness of the legatee not in existence when the will was executed, and so far as appears, not in the contemplation of the testatrix at that time. The matter to be determined in the construction of a will is what did the testator intend at the time of its execution? * * * Clearly, circumstances occurring long after the execution of a will could not have been within the contemplation of the testator, and could, therefore, throw no light upon the meaning of language which he then used.” (Morris v. Sickly, 133 N. Y. 456, 459.) It seems plain to us, too, that the evidence fails to establish a valid release by the testatrix of the indebtedness or a gift to the debtor. (McCarthy v. Pieret, 281 N. Y. 407.) The executor may, we assume, bring an action against the debtor to recover the debt; but he cannot satisfy the indebtedness of the life beneficiary out of the principal of the trust fund, for the debtor has no title to the principal. The question remains whether the trustee may be directed to retain the payments which will be due to the debtor during his lifetime.

Whether the trustee may retain payments which will become due to the debtor during his lifetime depends upon whether the testatrix manifested in her will an intention to provide a minimum amount which should be paid each year to her son even though he might be indebted to her estate. The applicable rule has been stated as follows: “ Where a testator leaves his estate in trust for several beneficiaries, one of whom was indebted to the testator, the interest of that beneficiary is subject to a charge for the amount of his indebtedness, unless the testator manifested an intention that his interest should not be subject to such a charge * * *. Where by the terms of the trust or by statute it is provided that the interest of a beneficiary shall not be assigned by him or reached by his creditors, in other words where the trust is a spendthrift trust, the inference is that the testator intended that the beneficiary should enjoy the whole interest given him under the trust, and that the amount of his indebtedness to the testator should not be a charge upon his interest.” (2 Scott on The Law of Trusts, p. 1436. Cf. Restatement of the Law of Trusts, § 251.)

Here the testatrix has created a spendthrift trust for her son, Harold 0. Chamberlin, but with the proviso that upon the happening of the contingency, viz., the exhaustion of another trust fund created for the benefit of her son by his father, the beneficiary should become entitled to a fixed sum per month. There is no doubt that until the contingency occurred the trust was a spendthrift trust; and the interest of the beneficiary was not “ transferable nor subject to commutation or incumbrance nor to legal process * * *.” The courts below have assumed that until then the trustee could not retain the income of the spendthrift trust. The contingency has, however, occurred; the beneficiary is now entitled to a fixed annual sum or annuity payable out of principal and the courts below have held that the “ annuity payments ” due to the beneficiary are transferable and subject to legal process and for that reason may be retained by the trustee till the annuitant’s indebtedness is paid.

We assume that the testatrix provided that upon the happening of the contingency specified in the will the life beneficiary should become entitled to an annuity and that such annuity is transferable and subject to execution. (Wells v. Squires, 117 App. Div. 502; affd., on opinion below, 191 N. Y. 529; Matter of Trumble, 199 N. Y. 454; Cochrane v. Schell, 140 N. Y. 516.) It does not follow that the trustee may retain the annuity payments till the debt is satisfied if it appears from the form of the gift that the testatrix intended otherwise. The public policy of the State embodied in the statutes imposes on a testator statutory restraints on freedom of action with respect to property ” including testamentary power to make a gift which would enable a beneficiary to avoid paying his honest debts.” (Matter of Fowler, 263 App. Div. 255, 260; affd., 288 N. Y. 697 [June, 1942].) No public policy or statute imposes similar restraint on the powers of a testator to make provision for the support of a beneficiary without deduction for the payment of a debt due to the testator.

In this case the intention of the testatrix to make such provision for the support of her son is implied in the will as clearly as if it had been stated in express terms. The testatrix, as we have said, established a “ spendthrift ” trust for him, but realizing that the income from the trust fund might be insufficient, in a specified contingency, for its intended purpose, she provided that in that event the beneficiary should receive the sum of eighty dollars a month. Technical distinctions between the rights of the beneficiary of an express trust and the rights of an annuitant cannot cloud the clear intent of the testatrix, by gift of an annuity payable both from income and principal of a trust fund, to provide for her beneficiary greater assurance of adequate support than he would receive through gift of the limited income which the trust fund would produce. We give to the provision made by the testatrix its clearly intended effect. The beneficiary has the right to receive payment of the annuity provided by the testatrix for his support free from any charge for the repayment of any indebtedness to the estate.

We have assumed throughout this opinion that the trustee would be required to retain annuity payments till the indebtedness was paid if the contrary intent of the testatrix were not apparent. We recognize that there may be doubt even there, and we point out that we do not decide such question now.

The order of the Appellate Division and the decree of the Surrogate’s Court should be modified by eliminating the direction to the trustee to retain payments due to the objectant under paragraph Fifth of the will, and as so modified affirmed, with costs to all parties who have filed briefs, payable out of the estate.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    In the Matter of the Claim of Nathan Altschuller, Respondent, against Jacob Bressler, Doing Business as Bressler Cap Company et al., Appellants. State Industrial Board, Respondent.

      Argued December 3, 1942;
    decided January 14, 1943.

      Joseph F. Hanley, Francis J. Healy and John W. Trapp for appellants.
    The decision and award of the State Industrial Board were based upon hearsay testimony received over objection in violation of section 118 of the Workmen’s Compensation Law (Cons. Laws, ch. 67) and therefore not proper proof of an industrial accident. (Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Matter of Van Cise v. Standard Oil Co., 209 App. Div. 838; 239 N. Y. 587; Matter of Schneider v. Dannehoffer Glass Works, 225 App. Div. 836; Matter of Kemp v. Sterling Engine Co., 230 App. Div. 546.) The coronary occlusion from which the claimant suffered and was disabled was not the result of an industrial accident. (Matter of Dworak v. Greenbaum Co., 261 App. Div. 1022; Matter of Woodruff v. Howes Const. Co., 288 N. Y. 276: Paul v. Travelers Ins. Co., 112 N. Y. 472; Matter of Lerner v. Rump Bros., 241 N. Y. 153; Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83.)

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for State Industrial Board, respondent.
    The claimant sustained an accidental injury. (Matter of Woodruff v. Howes Constr. Co., 228 N. Y. 276; Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83; Matter of Dugan v. Hasman & Baxt, Inc., 263 App. Div. 1031; 288 N. Y. 699; McCormack v. Wood Harmon Warranty Corp., 288 N. Y. 614; Matter of Weiss v. Buffalo Scale Co., 262 App. Div. 979.) The hearsay testimony was properly admitted in evidence. (Flynn v. Prudential Ins. Co., 207 N. Y. 315; Riggs v. Palmer, 115 N. Y. 506; Allen v. Stevens, 161 N. Y. 122; Matter of Rice v. Wrigley Co., 264 App. Div. 44; 289 N. Y. 665.) The record contains substantial medical evidence that the accident of May 9, 1939, caused the claimant’s coronary occlusion and cerebral embolism.
   Lehman, Ch. J.

The evidence establishes without contradiction that the claimant suffered a coronary occlusion on May 9th, 1939, or the early morning of May 10th ” and that the coronary occlusion produced a hemiplegia accompanied by sensory as well as motor aphasia.” As a result the claimant is totally disabled, and is unable to speak coherently or to understand what is said to him. The State Industrial Board has found that the claimant’s total disability is the result of accidental injuries sustained by the claimant on May 9, 1939, and that the injuries arose out of and in the course of his employment. The Appellate Division has unanimously affirmed the award made to the claimant for those injuries.

The claimant is, of course, incapable of giving any testimony and no witness was produced who saw any accident. In his decision the referee who heard the claim stated: “ This claimant is mentally dead, although his body lives. I have, therefore, taken hearsay testimony corroborated by certain direct evidence, and on the basis of all the testimony, I find that it has been established that claimant suffered an accident arising out of and in the course of his employment.” Concededly the finding of the Industrial Board that the claimant’s condition is the result of accidental injuries arising out of and in the course of his employment rests solely upon the hearsay testimony,” perhaps corroborated, by circumstances or other evidence.” This court granted leave to appeal in order to review the question whether under the terms of section 118 of the Workmen’s Compensation Law (Cons. Laws, ch. 67), such hearsay testimony may be accepted as sufficient to establish the accident and the injury.

Prior to the alleged accident, the claimant worked for about 18 years as a blocker of hats and caps in the employ of Jacob Bressler, doing business as the Bressler Cap Co. In his work the claimant used a boiler ” which contained three or four pails of water and, when filled, weighed between 75 and 125 pounds or more. He was required to change the water occasionally when it became dirty. The employer testified that to remove the dirty water from the kettle you take the kettle in your hand and pour it -into a pail.” From testinumy of other witnesses it appears that the dirty water could be removed, also, by scooping.” In the early afternoon of May 9, 1939, the claimant complained to Harry Bressler, a fellow workman and a brother of the employer, that “ he has a terrible heart-burn.” Bressler testified, as a witness for the employer, that he asked the claimant: “ What happened to you? Did you report an accident? ” and then in answer the claimant, by signs and words, conveyed to him that he lifted something.” The witness sent for bicarbonate of soda. The claimant took the medicine and said it relieved him for a few minutes, and then he got the pain again.” Concededly the pain constituted a premonitary symptom of the coronary occlusion which resulted in the claimant’s total disability and concededly from the start the claimant said that the pain was due to “ lifting.”

Another fellow-worker testified for the claimant that she saw him take some medicine after complaining of heart burning ” and after twenty minutes or a half-hour the witness asked him how he felt and he told me that he is still sick and is wondering whether lifting the boiler would cause this condition.” The claimant went home later in the afternoon. The superintendent of the house, where claimant lived, testified that she saw him get out of a taxi looking “ very blue ” arid “so I asked him, ‘ What happened to you? ’ He says: ‘ I got hurt in the place, lifting something.’ ” The claimant’s wife testified that she came home a little after five. We quote verbatim her testimony of the conversation she then had with the claimant:

Q. You had a conversation with him. Tell the Referee what he said to you and what you said to him. A. I said to him why he is home so early, because he usually comes later, about seven o’clock. So he said to me, in the afternoon he got a heartburn and he went over to the man who takes charge, Mr. Bressler, and he gave him some bicarbonate of soda, and it stopped a little. So I said, How does it come you had a heartburn? ’ He said he was in a hurry and he wanted to lift up the boiler at once — he usually takes out with a pail the water from the boiler — so he lifted it and all of a sudden he got a heartburn and the man gave him some bicarbonate of soda. He tried to work and he couldn’t. So he came home earlier that day — he would try to rest up and he thought he would be all right. That was the conversation.”

If the claimant had testified under oath and subject to cross-examination, that “ all of a sudden he got a heartburn,” while lifting the heavy boiler, findings of the Industrial Board that the claimant suffered a coronary occlusion “ due to the strain and unusual effort used in the lifting- of said heavy kettle ” and that “ the total disability of Nathan Altschuller was the natural and unavoidable result of the accidental injuries sustained by him ” would not be subject to serious challenge. There is ample medical testimony that such “ strain and unusual effort ” would be a competent producing cause of the occlusion and though physicians of unquestioned scientific attainments and reputation testified that the occlusion could not have been so caused, this court cannot pass upon scientific questions when experts have expressed conflicting opinions. The question remains whether testimony of narration of the alleged accident by the claimant can be accepted as sufficient to prove that the alleged accident did occur.

In Matter of Carroll v. Knickerbocker Ice Company (218 N. Y. 435), the court decided that hearsay testimony, i. e. testimony by a witness of declarations or narration by a deceased workman that in the course of his employment he sustained injuries in an accident, was not sufficient to sustain the finding there made by the Commission that the death of the workman was caused by such an accident. All the judges, however, agreed that section 68 (now § 118) of the Workmen’s Compensation Law “ has plainly changed the rule of evidence in all cases affected by the act,” and, as the prevailing opinion points out, permits the court “ to receive and consider not only hearsay testimony, but any kind of evidence that may throw light on a claim pending before it.” (p. 440.) There was a sharp dissent from the conclusion of the majority of the judges that though the hearsay testimony was properly received, a finding resting solely upon the.narration of a deceased workman is not sustained by any substantial evidence of probative force.

The prevailing opinion summarized the decision in these words: The only substantial evidence before the workmen’s compensation commission was to the effect that no cake of ice slipped and struck the decedent, and there were no bruises or marks upon the body which indicated that he had been so injured. The findings to the contrary rest solely on the decedent’s statement made at a time when he was confessedly in a highly nervous state, which ended in his death from delirium tremens. Such hearsay testimony is no evidence (Matter of Case, 214 N. Y. 199).” (p. 441.) The court formulated for the guidance of the Commission the general rule to be applied in such cases. The act may be taken to mean that while the commission’s inquiry is not limited by the common law or statutory rules of evidence or by technical or formal rules of procedure, and it may in its discretion accept any evidence that is offered; still in the end there must be a residuum of legal evidence to support the claim before an award can be made.” (p. 440.)

The rule so formulated has been criticised by many scholars as the product of judicial reluctance to depart from long accepted but technical common law rules and concepts, and the dissenting opinion has received correspondingly warm approval. Nonetheless, this court has never overruled its decision in Matter of Carroll v. Knickerbocker Ice Co, supra, nor has the Legislature amended the statute in manner which would permit the trier of the fact to give greater probative force to “ hearsay ” evidence.

In each case thereafter presented to this court where a claimant sought to prove by the extra-judicial narration of an injured employee that the disability was the result of an accidental injury arising out of and in the course of his employment, the problem considered by the court was whether there was a sufficient residuum of legal evidence.” The court has never required that such residuum should, independently of the hearsay ” evidence, establish the accident. The sufficiency of the residuum of legal evidence ” cannot be measured by any mechanical formula. There must be evidence setting forth facts of a probative character, outside of hearsay statements, to prove the award and show that it is fair and just. (Matter of Carroll v. Knickerbocker Ice Co.) ” (Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326, 330.) In the latter case a closely divided court held that such evidence of probative character ” was lacking, but it indicated that an award, resting upon the declaration of an injured employee, would be sustained if facts and circumstances ” tend to show that the declarations of a deceased employee may be true. (See Matter of Sorge v. Aldebaran Co., 218 N. Y. 636; Matter of Fogarty v. National Biscuit Co., 221 N. Y. 20.) The fact that two of the four judges, who concurred in the prevailing opinion in Matter of Carroll v. Knickerbocker Ice Co., supra, dissented from the decision in Matter of Belcher v. Carthage Machine Co., supra, that there was not sufficient evidence of probative character in the latter case, indicates that in Matter of Carroll v. Knickerbocker Ice Co., the court did not intend to formulate a rule which would hamper the Commission from making an award which is shown to be “ fair and just ” by all the evidence, including hearsay statements ” which throw light on the claim.

The evidence in this case is sufficient for that, and the decision is not inconsistent with Matter of Carroll v. Knickerbocker Ice Co., supra. There, as the court pointed out, all the substantial evidence contradicted the hearsay ” statements. Clearly established facts and circumstances ” not only failed to corroborate the hearsay statements but tended to show that the statements were untrue, and the statements were made under conditions which made them intrinsically unreliable. Here, on the contrary, there is no substantial testimony to show that an accident did not occur as narrated by the injured employee, and established “ facts and circumstances ” leave little reasonable doubt that the narration is substantially true.

The Workmen’s Compensation Law was revised by chapter 615 of the Laws of 1922. Section 68 in the original law became section 118 in the revised law, and a new sentence was added: Declarations of a deceased employee concerning the accident shall be received in evidence and shall, if corroborated by circumstances or other evidence, be sufficient to establish the accident and the injury.” The section as construed by this court before its revision authorized the Commission to accept “ hearsay ” testimony; and awards which rested upon declarations of deceased employees, corroborated by circumstances or other evidence,” had been sustained by the court. The new sentence added by the Legislature when revising the statute merely took cognizance of the judicial definition of the scope and effect of the statute. Thereafter the Board was commanded by the Legislature to give to declarations of deceased employees the effect which this court had said the Commission might in proper case give to such declaration.

In giving that mandate in regard to the declarations of deceased employees, the Legislature did not indicate that the Board was not authorized to receive the declarations of employees who though living and breathing had lost understanding and power of speech, or indeed to receive other “ hearsay ” evidence of any kind and to give such evidence its proper probative force. The Board acts reasonably when it refuses to base a decision upon the declarations of a claimant who could testify if he chose to do so, and though the Legislature has chosen to command that the declarations of a deceased employee shall be received and shall be sufficient to sustain an award for death benefit, it has not attempted to define the probative force of declarations of a claimant who is living, or the sufficiency of such declarations to sustain an award for disability. In each case the probative force of declarations of the injured employee must depend in great degree upon whether his failure to testify is satisfactorily explained. Such matters are left to the determination of the Board, subject, in proper case, to review by the courts. Since in this case the injured claimant is entirely incapable of giving testimony, the Board did not err in giving the same probative value to the claimant’s declaration as they would give to the declaration of a deceased employee.

The order should be affirmed, with costs.

Loughean, Finch, Rippey Lewis, Conway and Desmond, JJ., concur.

Order affirmed.


author: Lewis, J.

text:
    The People of the State of New York ex rel. Nicholas Saia, Appellant, against Walter B. Martin, as Warden of Clinton Prison, Respondent.

      Argued October 9, 1942;
    decided January 21, 1943.

      Adolph M. Newman for appellant.
    Section 293 of the Correction Law (Cons. Laws, ch. 43) is unconstitutional in that it denies a person due process of law. (People v. Henriques & Co., 267 N. Y. 398; Matter of Naylor, 284 N. Y. 188; Hovey v. Elliott, 167 U. S. 409; People ex rel. Morriale v. Branham, 36 N. Y. S. (2d) 217; People ex rel. Moss v. Brophy, 247 App. Div. 859.) Section 293 of the statute is unconstitutional in that it encroaches upon the judicial department of the State. (People ex rel. Burby v. Howland, 155 N. Y. 270.) The order of affirmance is based upon an incorrect reading of section 293 and should be reversed.

      John J. Bennett, Jr., Attorney-General (Harry P. Kehoe and Patrick H. Clune of counsel), for respondent.
    Section 293 of the Correction Law is not unconstitutional. (People ex rel. Stephani v. North, 91 Misc. 616; People ex rel. Coppola v. Brophy, 254 App. Div. 641; 280 N. Y. 778.)
   Lewis, J.

The appellant, when twenty years of age, pleaded guilty in Supreme Court, Erie County, to the crime of robbery second degree. He was sentenced to be “ imprisoned at hard labor in the Elmira Reformatory * * * until discharged according to law.” While he was serving that sentence the Commissioner of Correction, assuming to act under authority conferred upon him by section 293 of the Correction Law (Cons. Laws, ch. 43), made an order by which the appellant was transferred from Elmira Reformatory to Clinton Prison at Dannemora where the warden was ordered to receive and detain him “ as directed by law.”

In this habeas corpus proceeding the appellant, invoking the “ due process ” clause of the Federal Constitution (Amendment XIV, § 1) and of the Constitution of New York (art. 1, § 6), asserts that in the circumstances presently to be considered the order transferring him from Elmira Reformatory to a State prison, which purports to have been made under section 293' of the Correction Law (as amd. by L. 1931, ch. 455), is void. The Appellate Division has unanimously affirmed the order of Special Term dismissing the writ of habeas corpus. The proceeding is here upon appeal by the appellant as of right upon the ground that a constitutional question is involved.

Since 1881 the Legislature has prescribed that when a person is convicted of a crime —“ The place of the imprisonment must be specified in the judgment and sentence of the court. But convicts may be removed from one place of confinement to another, in a case, and by the authority, designated by statute.” (L. 1881, ch. 676 [Penal Code, § 705]; now Penal Law, § 2180.)

If we trace the history of statutory provisions which have governed transfers of convicts from Elmira Reformatory to State prisons, we find that prior to the present statutes, section 296 of the Correction Law (repealed by L. 1931, ch. 455) provided that in the event the Board of Managers of the Reformatory found that the institution was overcrowded, or that a prisoner therein was more than thirty years of age or had been previously convicted of a felony, or was incorrigible and that his presence there was seriously detrimental to the welfare of the institution, the Board might apply to a Justice of the Supreme Court for an order transferring him to a State prison. Under that former statute the petition for such an order, signed by the Board of Managers of the Reformatory, was required to state the causes for seeking such transfer ” and it was further required that “ notice of such application * * * shall be served * * * at least eight days before the hearing on the superintendent of state prisons.” The earlier statute also empowered the Justice of the Supreme Court to whom application was made to “ grant such order of transfer, on such hearing as he may prescribe if it appears to his satisfaction that the facts alleged are true and that such transfer should be made." (Emphasis supplied.)

By the enactment of Laws of 1931, chapter 455, the former sections of the Correction Law which dealt with reformatories were repealed, including section 296 mentioned above. In their place a new Article 12 was substituted which was divided into three parts, one of which contains those provisions which have special application to Elmira Reformatory. By the new section 293 the procedure by which a transfer from Elmira Reformatory to a State prison had formerly been accomplished was changed by eliminating the requirement of an order of a Justice of the Supreme Court and substituting an order by the Commissioner of Correction. Section 293 (effective April 16, 1931) provides as follows:

§ 293. Transfer of prisoners from Elmira reformatory to state prisons. If it shall appear to the satisfaction of the commissioner of correction that Elmira reformatory is over-crowded or that any prisoner confined in such reformatory:
“ 1. Was, at the time of his conviction, more than thirty years of age; or
“ 2. Has been previously convicted of a felony; or
3. While in the reformatory, is incorrigible and that his presence therein is seriously detrimental to the welfare of the institution; the commissioner, by order, may cause the prisoner or prisoners named therein to be transferred to a state prison specified by him. A prisoner so transferred shall be confined in such prison as under an indeterminate sentence, commencing with bis imprisonment in the reformatory with a minimum of one year and a maximum fixed by law for the crime of which the prisoner was convicted and sentenced; and may be released on parole or absolutely discharged as are other prisoners confined under an indeterminate sentence. Such prisoner may be returned at any time to the reformatory in the discretion of such commissioner.”

WLen, following the present appellant’s conviction, a judicial officer, in the exercise of his discretion, imposed a sentence which specified Elmira Reformatory as the place of imprisonment, the appellant was thereby placed under that type of detention recognized by statute as peculiar to a reformatory — a type of penal discipline which is designed “ to accomplish [the prisoner’s] reformation.” (Correction Law. § 277; and see §§ 295, 296.) We may assume that the appellant’s sentence to a reformatory was to make effective the purpose of the committing justice to afford the appellant the benefit of those corrective measures which the Legislature in its wisdom has chosen as means by which young men who are not hardened criminals but who have been subjected to subversive influences and have given evidence of weakened moral sense, may be taught how to make an honest living and thus tend to accomplish their reformation.” (Correction Law, § 277.)

In furtherance of that public policy the Legislature has provided that an inmate of Elmira Reformatory, as was the appellant, cannot be transferred to a State prison unless it shall appear to the satisfaction of the Commissioner of Correction that one or more of the conditions exist which are expressly set forth in section 293 quoted in full above.

However, the record before us fails to show that as a basis for the order transferring the appellant to Clinton Prison, there was evidence before the Commissioner of Correction of any one of the facts required by section 293. The only evidence of the causes which prompted the appellant’s transfer is to be found in the following written statement which accompanied the order made by the Commissioner of Correction:

# 42378 Nicholas Saia. He was returned for violation of parole and has been held for five years. He comes from a bad family and the authorities have information that they have their chain of houses of prostitution. Although he is married, he was receiving visits for awhile from a girl, who was posing as his wife with whom he lived while on parole. His family, also, advised the Elmira authorities that this girl was Saia’s wife. He is inclined to be a ‘ Big Shot ’ among the Italian inmates. He is not considered a suitable case for Elmira Reformatory.”

We find nothing in the above statement which satisfies the statutory requirements for the order by which the appellant was transferred from a reformatory to the State prison at Dannemora. There is nothing of record in this proceeding which shows, within the requirements of section 293, that on the date of the order directing the appellant’s transfer Elmira Reformatory was overcrowded; that the appellant was over thirty years of age; that he had previously been convicted of a felony; that he was incorrigible or that his presence in Elmira Reformatory was seriously detrimental to the welfare of that institution. On the contrary, the hearsay statement, quoted above, that the appellant comes from a bad family and the authorities have information that they have their chain of houses of prostitution,” is controverted by the sworn statement by the appellant’s father, which stands uncontradicted — that at no time during the life of your deponent or any members of his family has he owned, operated, managed or maintained or had anything to do with a house of prostitution, houses of prostitution, or chain of houses of prostitution.” Nor do we think the statement of alleged fact, given as a basis for the. transfer, that He [the appellant] is. inclined to be a ‘ Big Shot ’ among the Italian inmates,” affords support for the drastic order which is now challenged.

The record also makes it clear that the appellant’s transfer from a reformatory to a State prison was ordered by the Commissioner of Correction without affording the' appellant an opportunity to be heard upon the written charges annexed to the order, which charges, on their face, do not meet the requirements of section 293 of the Correction Law. Indeed, it appears by an affidavit filed by the appellant that as to those charges he was prepared to give evidence which, if believed, would tend to prove their falsity.

Without passing upon the constitutionality of section 293 of the Correction Law, we are to determine whether in this instance section 293 was administered in accordance with its terms and in a manner which accorded to the appellant due process of law within the constitutional guarantees to which he was entitled.. The precise question is whether in this habeas corpus proceeding the appellant may challenge the validity of the order by which he was transferred from Elmira Reformatory to Clinton Prison at Dannemora, where it appears that the order was based upon facts which do not meet the requirements of section 293 and there is no evidence that one or more of the statutory conditions prerequisite to such an order have been fulfilled.

Concededly the Commissioner of Correction was without power to make the order in question except by that limited authority which the Legislature has granted by section 293. In view of the failure by the Commissioner to present proof in the present proceeding that prior to the order now challenged there existed at Elmira Reformatory one or more of the conditions specified in section 293, we think the order here in question is void. It follows that the transfer which was made thereunder, served to deprive the appellant of his right, under his original sentence, to that type of penal servitude which', as we have seen, was made available by the Legislature at Elmira Reformatory and which, we may assume, was designated by the committing justice, in the exercise of judicial discretion, as appropriate for the appellant. The enforcement of the void order, by which he was transferred from Elmira Reformatory to Clinton Prison at Dannemora, placed additional restraint upon the appellant’s liberty without sanction of law. In the circumstances disclosed by this record, it was a deprivation of liberty in violation of the appellant’s right to due process of law guaranteed to him by the Constitution.

Our conclusion being that the appellant is now detained at Clinton Prison under a void order, which has been administered in violation of his constitutional rights, the remedy of habeas corpus is available to him. (Civ. Pr. Act, § 1230; and see Hoff v. State of New York, 279 N. Y. 490, 492, 493; People ex rel. Carr v. Martin, 286 N. Y. 27, 31; Hans Nielsen, Petitioner, 131 U. S. 176, 182; Bowen v. Johnston, 306 U. S. 19, 24.) Under the rule prevailing in this jurisdiction the fact that the appellant is still under a legal commitment to Elmira Reformatory does not prevent him from invoking the remedy of habeas corpus as a means of avoiding the further enforcement of the order challenged. (People ex rel. Coppola v. Brophy, 280 N. Y. 778; People ex rel. Markov v. Brophy, 284 N. Y. 323; People ex rel. Bai v. Brophy, 286 N. Y. 585.)

The orders should be reversed and the relator remanded to the custody of the Superintendent at Elmira Reformatory.

Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ., concur.

Ordered accordingly.


author: Desmond, J.

text:
    Hazak, Inc., Respondent, v. Robertson Goetz Building Co., Inc., et al., Appellants, et al., Defendants.
    Argued October 26, 1942;
    decided January 21, 1943.

      Alexander Boskoff for appellants.
    Section 1433 of the Penal Law is not applicable to the instant trespass. (People v. Knatt, 156 N. Y. 302.) The admission in its entirety of the deposition of the defendant Alert Contracting Co. Inc., made before trial as an adverse party constituted reversible error. (Napier v. Bossard, 102 F. 2d 467; Nixon v. Beacon Transportation Corp., 239 App. Div. 830; Galbraith v. Galbraith, 248 App. Div. 914; Freisinger v. Reibach, 254 App. Div. 575; Hewitt v. Newburger, 141 N. Y. 538.)

      Arthur Morris for respondent.
    Since the trespass was willful the plaintiff is entitled as a matter of right to treble damages. (Bergen v. Morton Amusement Co., 178 App. Div. 400; Storrs v. City of Utica, 17 N. Y. 104; Boylhart v. DiMarco & Reimann, Inc., 270 N. Y. 217; McCrea v. McClenahan, 131 App. Div. 247; Debobes v. Butterly, 210 App. Div. 50; Milliken v. Frisbie, Coon & Co., 175 App. Div. 579; Layton v. McConnell, 61 App. Div. 447; King v. Havens, 25 Wend. 420; McCruden v. Rochester Ry. Co., 5 Misc. 59; Humes v. Proctor, 73 Hun, 265; Sheldon v. Baumann, 19 App. Div. 61; Day v. Woodworth, 13 How. 363; Starkweather v. Quigley, 7 Hun, 26; Newcomb v. Butterfield, 8 Johns. 342; Alloway v. Hickok, 215 App. Div. 86; 243 N. Y. 615.) The deposition before trial of Alert Contracting Co. Inc., was competent as against said defendant Alert and properly received in evidence as such.
   Desmond, J.

All the appellants were concerned, in one way or another, with the building of an apartment house on a tract of land part of the rear line of which abutted the rear of respondent’s vacant land. In excavating for the foundations of the new building, defendant Alert Contracting Co., Inc. (not appealing here) cut down part of the rear of plaintiff’s land, which rear part was a sort of plateau, higher than appellants’ apartment house site. The proof was sufficient to establish that this cutting down of part of respondent’s high land was willful, unauthorized and unlawful, and that all of the appellants are hable for the damage so done. The jury’s verdict was in the amount of $850 and the court, under the supposed authority of subdivision 3 of section 1433 of the Penal Law, trebled that amount and directed judgment accordingly. The only important question for us is as to the propriety of that trebling.

Since 1881 (chapter 676 of the Laws of that year) there has been in our criminal law a statute describing the punishments to be meted out to “ a person who unlawfully and wilfully destroys or injures any real or personal property of another, * * * in a case where the punishment is not specially prescribed by statute * * (See Penal Code, § 654, now Penal Law, § 1433.) The only changes made to this statute since 1881 have been these: there has been added to the general statement as to unlawful and willful destruction or injury, a specification of certain unlawful interferences with railroad property, and, also, the dividing line as to the amount of diminution of value, above and below which line the criminal punishments are different, has been changed from twenty-five to two hundred and fifty dollars. Before the second of these two changes was made this court held, in People v. Knatt (156 N. Y. 302) that a criminal prosecution could not be maintained under this section for acts made punishable by any other statute. We now have, in the case before us, a similar question as to civil liability under subdivision 3, which reads, and has always read, as follows: “ and in addition to the punishment prescribed therefor, he is liable in treble damages for the injury done, to be recovered in a civil action by the owner of such property, or the public officer having charge thereof.”

The acts proven in this case are specifically covered, as to criminal punishment, by section 1425, subdivision 4 of the Penal Law which makes one guilty of a misdemeanor who wilfully “ digs, takes or carries away without lawful authority or consent from any lot of land in any city or incorporated village, * * * any earth, soil or stone.” Therefore, since plaintiff’s suit involves acts for which criminal punishment is “ specially prescribed by statute,” it follows that section 1433, subdivision 3, of the Penal Law, has no application here and there is no authority for trebling the damages assessed by the jury.

Argument can be made from the grammatical structure of section 1433, and from the phrase which introduces subdivision 3 (“and in addition to the punishment prescribed therefor ”) that the treble damage liability set up in subdivision 3 is available as to all kinds of unlawful and willful destruction or injury to property. In other words, it is possible so to read the statute that the above-quoted phrase “ in a case where the punishment is not specially prescribed by statute,” applies only to criminal punishment under subdivisions 1 and 2, and not to civil liability (for treble damages) under subdivision 3. Such a construction, however, is a possible but not a reasonable one.

Article 134 of the Penal Law covers many kinds of malicious mischief. Those which the Legislature chose to describe specifically and treat individually, are dealt with in sections other than section 1433. The only exception to this is as to the railroad trespasses or injuries, reference to which was inserted in section 1433 after its original enactment. Treble damages are mentioned only in section 1433. The whole scheme of article 134, including the separate treatment of numerous offenses in various sections, as well as the inclusion generally of other such wrongs and specifically of railroad damage in section 1433, leads us to the conclusion that section 1433, as to treble damages as well as to criminal punishment (People v. Knatt, supra), means just what it says, that it is not applicable to cases categorically dealt with elsewhere in the law. It can, of course, be demonstrated that this results sometimes in the trebling of civil damages in cases of minor injury, and in lack of authority for such trebling in more aggravated cases. But the whole problem is for the Legislature, and there is no reason to doubt that the Legislature has deliberately prescribed, for the several malicious mischiefs, such various punishments as seem to it appropriate.

The judgments should be modified by deducting from the amount thereof so much thereof as represents the amount added by the trebling of the damages, including interest on such increase, and as so modified, affirmed, without costs.

Lehman, Ch. J., Lotjghran, Finch, Lewis and Conway, JJ., concur; Rippey, J., dissents.

Judgment accordingly.


author: Rippey, J.

text:
    The People of the State of New York, Respondent, v. Harold Rosenthal, Appellant.
    Argued December 11, 1942;
    decided January 21, 1943.

      I. Maurice Wormser, John S. McGovern, Samuel Bader and Roland Segal for appellant.
    The trial court committed reversible error in permitting the prosecution to offer, in rebuttal, evidence of previous similar offenses allegedly committed by the defendant upon other boys. (People v. Allen, 282 N. Y. 511; People v. Hall, 260 App. Div. 901; People v. Wyett, 49 Cal. App. 289; State v. Gregorious, 81 Utah, 33; State v. McAllister, 67 Ore. 480; State v. Start, 65 Ore. 178; Abbott v. State, 113 Neb. 517; People v. Perry, 277 N. Y. 460; People v. DeGarmo, 179 N. Y. 130; Martin v. United States, 127 F. 2d 865; People v. Thompson, 212 N. Y. 249; People v. Felber, 264 App. Div. 181; People v. Richardson, 222 N. Y. 103; People v. Sing, 242 N. Y. 419; People v. Cascone, 185 N. Y. 317.) The charge of the court was subject to the fundamental vice that it directed the jury to reject defendant’s testimony if the jury was satisfied that the testimony on collateral matters, given by the three boys in rebuttal, was truthful. (People v. Perry, 277 N. Y. 460.)

      Leo J. Hagerty, District Attorney (John L. Kelly of counsel), for respondent.
    The testimony of the witnesses Barton, Scully and Goff was properly admitted. (People v. Molineux, 168 N. Y. 264; Commonwealth v. Turner, 44 Mass. 19; Martin v. United States, 127 F. 2d 865; Brunet v. The King, 42 Dominion Law Reports, 405.) If error, this evidence should be disregarded under section 542 of the Code of Criminal Procedure.
   Rippey, J.

Upon an indictment containing three counts, the defendant was convicted in the Supreme Court of Erie County on September 11, 1941, of the crime of (1) kidnapping a boy sixteen years of age, and of committing upon him while under defendant’s control and detention the crimes of (2) sodomy and (3) assault in the second degree. At the time of the commission of the alleged crimes, defendant was unmarried, thirty-one years of age, and engaged in a radio service business in the city of Buffalo. He lived with his mother in the second story flat of a building at 1597 Hertel avenue. Defendant usually left bis business establishment and returned to his home in the early morning hours. The complainant was a high school boy of Akron, N. Y., and unacquainted with defendant prior to the commission of the alleged crimes for which defendant was convicted.

The claim of the People is that defendant was returning home from his place of business in his automobile at about three o’clock on the morning of May 22,1941, when he contacted the complainant on a bicycle on one of the streets of Buffalo and induced the boy by false representations and promises to accompany him home to stay overnight, that after they reached defendant’s home the boy was detained against his will and that, while so detained, the boy was forced to submit to the commission upon him by defendant of the crime of sodomy. There was no claim on the part of the prosecution nor evidence that the defendant seized the boy or used any force in taking him into the automobile.

To establish the crimes charged, the People relied entirely for vital factors upon the testimony of the complainant. Unless the boy was confined or imprisoned or held to service or kept or detained against his will by defendant, the latter was not guilty of the crime of kidnapping. If the boy was a willing participant in the crime of sodomy, there could be no conviction of the defendant of that crime or of the attendant and associated crime of assault under the facts in the case. The court correctly submitted to the jury the question, as one of fact, as to whether the boy was an accomplice of defendant in the commission of the crime of sodomy. He also charged that if the jury should find that the boy was an accomplice, the defendant must be acquitted unless the testimony of the boy was corroborated by other evidence. The question of the accuracy of the charge on the subject of corroboration of the testimony of an accomplice is not open for our consideration since it is not raised by any exception to the charge. Under the provisions of section 399 of the Code of Criminal Procedure, there can be no conviction on the testimony of an accomplice alone but there must be other evidence independent of the evidence of the accomplice which in itself alone tends to connect the defendant with the commission of the crime. In People v. Feolo (284 N. Y. 381) and People v. Kress (284 N. Y. 452) we have recently laid down rules applicable and necessary under the statute relating to the nature and character of the corroborative evidence as required by law.

The defendant testified in his own behalf and contradicted testimony of the boy upon which conviction was necessarily predicated. His credibility became a vital factor in his defense. Counsel for the People was permitted, over the objection and exception of defendant, to cross-examine defendant concerning other alleged similar crimes he had committed. There was no evidence that he had ever been before convicted of any crime whatsoever. The questions asked were not pertinent to any testimony given by defendant on his direct examination. He was asked by the prosecutor whether other boys on other occasions had been with him in his automobile between three and four o’clock in the morning and defendant replied in the affirmative; how they happened to be in his automobile, and defendant said he knew them and they drove around with him; whether he ever had with him a boy whom he did not know, and defendant said he never had such a boy with him; whether he had ever prevented any boy from attempting to get out of his automobile, and defendant denied ' that anything like that had ever occurred. Then the following questions and answers appear in the record: “ Q. I will repeat it so you will understand it clearly. No question about it. You say you never at any time had a boy in your car other than the boys you were acquainted with, and never at any time tried to keep a boy in your car against his will? A. That is correct. Q. On or about January 18, 1940, were there two boys in your car you picked up at Delaware and Hertel? A. I never picked up any two boys at Delaware and Hertel. Q. And drove to Park-side and Hertel and drove behind a gas station? A. I don’t remember anything like that. Q. Did you have these two boys (indicating), Mr. Rosenthal, in your car on or about January 18, 1940, picked them up at Hertel and Delaware? A. They don’t even look familiar. Q. You deny you had these two boys in your car January 18, 1940? A. I don’t remember ever having them in my car. Q. Do you deny you drove an automobile with these two boys in it to Parkside and Hertel and drove behind the gas station? A. What gas station would that be? Q. Gas station at the northwest corner, Socony gas station at the northwest corner of Hertel and Parkside? A. Absolutely ridiculous. Q. Did you have these two boys in the back seat of your car and operate the automobile, the wheel, with the left hand and hold the right-hand door and attempt to keep these boys in the car against their will? A. I did not. That is absolutely ridiculous. * * * Q. Now, did you ever take a boy into your home and into the bed with you you had promised work? A. No. Q. On or about January 28, 1941, did you ever take a boy into your home and get him into bed with you and tell him you had to be to work early in the morning, that was the reason you wanted him to come home with you? A. No. Q. Did you ever see this boy before (indicating)? A. Yes, I did. I know him. Q. How long do you know him? A. Seen him around the last two years. Q. Did you ever have this boy at your home in bed with you? A. No, he wasn’t in bed with me. He stayed at my home. Q. Where did he stay in your home? A. In his own room. Q. When was that? A. I am not sure of the day.”

After the close of the defendant’s case the District Attorney, over the objection and exception of the defendant, called the Barton, Scully and Goff boys, concerning whom he had cross-examined defendant, in rebuttal, who contradicted defendant as to matters which were brought out by the District Attorney on cross-examination. The defendant’s attorney made motions to withdraw a juror and declare a mistrial on account of the admission of the rebuttal testimony, made motions to strike it from the record and preserved exceptions to the court’s refusal to grant any of those motions.

The theory of the court was that he allowed the cross-examination and admitted the testimony on rebuttal solely on the question of the credibility of the defendant. The subjects of the cross-examination and the rebuttal testimony related to matters collateral to the issue in this case. The court charged the jury that they must not consider the evidence as any evidence of the commission by the defendant of any other crimes but that he (the court) had limited the effect of the testimony to the question of the credibility of the defendant, to the question of whether or not he would be truthful in his denial of the transactions that the boy alleged occurred at defendant’s residence, to which charge the defendant excepted. The court coupled with that the further charge that if the jury believed that any witness, defendant or otherwise, intentionally testified falsely to any material fact, the jury had a right, but they were not required to, but had the right to disregard the entire testimony. Such a charge, standing alone, was correct. But, coupled as it was with the erroneous statement of the grounds of the admissibility and materiality of the cross-examination and rebuttal testimony, the jury were bound to conclude that they might find defendant’s whole testimony incredible if they believed he lied on his cross-examination by the prosecutor and that the witnesses called in rebuttal on the collateral matters told the truth. The prosecutor was bound by the answers on those subjects given by defendant on cross-examination. He could not contradict bim by other witnesses. (People v. DeGarmo, 179 N. Y. 130; People v. Perry, 277 N. Y. 460.)

The District Attorney, however, did not produce the rebuttal evidence on the theory that it was admissible for the purpose of destroying the credibility of the defendant. During lengthy discussions between the court and counsel on the subject of the admissibility and materiality of the testimony, he clearly indicated that he was not offering it for any such purpose. Those discussions all took place in the presence of the jury. He made himself clear on his theory as to the materiality of the evidence when he finally said: I want to make it plain I am offering this, so we have a clear understanding, I am offering the evidence of the previous witness and the next two witnesses [the three boys on rebuttal] under the same ruling established in the Molineux (sic) case, and another case (105 N. Y. 278), that it is permissible for the District Attorney to offer evidence of similar acts.” In his brief upon this appeal, the District Attorney makes these statements: The appellant is mistaken when he argues that the People offered this evidence for the purpose of showing that the defendant had an intent to commit sodomy. Such was not the contention of the People at the trial, neither was this the contention of the People before the Appellate Division. The contention of the People has been throughout this case that this evidence was offered only and solely for the purpose of proving the true intent of the defendant, (1) to inveigle and (2) to detain.” The jury thus understood that the District Attorney was offering the evidence to establish intent to inveigle and to detain by proving similar acts. We are unable to find anything in the decision in the Molineux case (168 N. Y. 264) or in the other case cited that authorizes the admission of such evidence to establish intent in connection with proof of the charge of the crime of kidnapping. The fact that the court said he declined to receive it on the ground urged by the District Attorney does not correct the error in its reception. Nor do we find any authoritative ruling'for the admission of evidence of similar crimes to establish the criminal intent of a defendant in connection with the commission of any of the crimes with which the defendant in the case at bar is charged. The law bars admission of evidence of similar crimes. (People v. Allen, 282 N. Y. 511; Martin v. United States, 127 P. [2d] 865, 868.)

Furthermore, the evidence erroneously admitted on rebuttal opened the door for the inference that defendant had been perpetrating other crimes similar to those alleged to have been perpetrated in this case. In his summary the prosecutor alluded to the testimony given by the three boys. Additionally, he argued that the interest of the People demanded a conviction so as to serve notice on these marauders on our streets and people with this sex mania they have to stop in the city of Buffalo,” and to head off other men in automobiles stalking our streets for sex, as well as gasoline,” and that the defendant preyed upon boys between three and four o’clock in the morning other than the three boys who testified here and the complainant. Exceptions were taken to all these portions of the summary. Motions were made to strike them out and requests were made to the court to charge that they should be disregarded, but the motions were overruled and the requests denied and exceptions were preserved to the court’s rulings.

The learned' Appellate Division has unanimously held that the admission of the testimony referred to was erroneous but a majority of the justices felt that the error must be overlooked under the mandate of section 542 of the Code of Criminal Procedure. We cannot say that the error was immaterial. Unless the District Attorney had felt that the cross-examination of the defendant in the matters alluded to and the rebuttal testimony were essential and material to his case, he would not have asked the questions or produced the witnesses on rebuttal. We concur in the statement of Judge Hiscock made under similar circumstances, where he says in People v. Sing (242 N. Y. 419, 424): When a district attorney so urgently relies upon incompetent evidence for the conviction of a defendant we feel quite confirmed in our opinion that it was important and not at all negligible.” We think the errors complained of were so prejudicial to defendant that they cannot be overlooked.

We need not consider other alleged errors claimed by appellant to have been committed during the course of the trial.

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Lotjghran and Lewis, JJ., concur with Rippey, J.; Finch, J., concurs in result; Conway and Desmond, JJ., dissent and vote to affirm under the provisions of section 542 of the Code of Criminal Procedure.

Judgments reversed, etc.


text:
    2018 Seventh Ave., Inc., Respondent, v. Nach-Haus Leasing Corporation, Appellant.

      Argued January 4, 1943;
    decided January 21, 1943.

      T. E. Purcell for appellant.
    Where there have been two former actions in which the claim or demand sought to be relitigated has been decided contrarily both parties may assert their claims anew. (Shaw v. Broadbent, 129 N. Y. 114; 34 C. J. 749; Mersereau v. Pearsall, 19 N. Y. 108; 2 Smith’s Leading Cases, 620.) The respondent is bound by the former adjudications upholding the appellant’s claims of fraud. (Goldberg v. Schlesinger, 86 N. Y. S. 209; Mora v. Kuntz, 173 N. Y. S. 739; Carleton v. Lombard Ayres & Co., 149 N. Y. 137; Prudence Co. v. 160 West 73rd Street Corp., 260 N. Y. 205; Klasco Finance Corp. v. Belleaire Holding Corp., 257 N. Y. 1.) The foreclosure suit of the savings institution; the judgment and sale of the premises; the removal of appellant from the premises through default in payment of interest and taxes on the property, and appellant’s affirmative defenses based on said default, have not been in issue in any of the actions preceding this action for foreclosure of the chattel mortgage and these defenses, therefore, cannot be prejudiced by the decision in the rescission suit, upon which the motion for summary judgment was granted. The respondent has waived the benefit of any estoppel growing out of the decision and judgment in the rescission suit by afterwards admitting in an affidavit that the respondent is not a holder in due course of the promissory notes, upon which, together with the chattel mortgage, this foreclosure suit is based. (Pray v. Hegeman, 98 N. Y. 351; 31 C. J. Secundum, p. 281: Bridger v. Goldsmith, 143 N. Y. 424.)

      David Seid for respondent.
    The judgment in the rescission suit must prevail as res judicata over other judgments which are not between the same parties. (Paradise v. Ridley, 19 N. Y. S. [2d] 24.) The Municipal Court action of the receiver could not in any way affect plaintiff’s rights to the lease, chattel mortgage or notes. (O’Brien v. Brody, 260 N. Y. S. 500; Markantones v. Madlan Realty Corp., 262 N. Y. 354; St. John v. Fowler, 229 N. Y. 270; Haverhill v. International Ry. Co., 217 App. Div. 522; Buffalo Fire Appliance Corp. v. City of Norwich, 281 N. Y. S. 939; Booth v. Powers, 56 N. Y. 22; Kessler v. Fligel, 240 App. Div. 232; Marcus v. Village of Mamaroneck, 283 N. Y. 325; Rosenwasser v. Amusement Enterprises, 150 N. Y. S. 561; Pryor v. Foster, 130 N. Y. 171.) The Municipal Court action of plaintiff’s assignee can in no way affect plaintiff’s rights to the chattel mortgage or notes. (Markantones v. Madlan Realty Corp., 262 N. Y. 354; O’Brien v. Brody, 260 N. Y. S. 500; N. Y. Life Ins. Co. v. Fulton Devel. Corp., 271 N. Y. S. 565.)
   Rippey, J.

On the 14th day of December, .1937, Cornell Arms, Inc., and Nach-Haus Leasing Corp. entered into a written agreement whereby Cornell Arms, Inc., sold to Nach-Haus Leasing Corp. all of its right, title and interest in and to the furniture, personal fixtures, equipment, linens, beddings and good will of the business being conducted at No. 850 West End avenue in the city of New York, together with other specific goods and chattels covered by a schedule annexed to the agreement, and for the execution and delivery of a lease contemporaneous therewith covering the real property at said address for a term of ten years. As security for part of the purchase price of the personal property the purchaser executed and delivered to the seller a series of forty-seven promissory notes aggregating in amount the sum of $7,000 and it was provided that in the event of default in payment of any note, installment or interest or'in any of the terms of the instrument and the continuance of the default for a period of ten days, the amount unpaid should thereupon become immediately due and payable. A hen was created upon the chattels for the payment of the unpaid balance of the purchase price. By the terms of the lease the lessee agreed to pay to the lessor the sum of $120,000, in ten years, in equal monthly installments of $1,000 in advance commencing with the 15th day of December, 1937. The real property was encumbered by a mortgage for $110,000 held by the Dry Dock Savings Institution which was a first lien upon the realty and by a mortgage owned by the plaintiff in this action which constituted a second hen thereon.

On November 10, 1939, Cornell Arms, Inc., assigned to the plaintiff ah of its rights under the aforesaid agreement and the hen which it had thereunder, together with twenty-two of the aforesaid forty-seven notes, numbered twenty-six to forty-six, inclusive, each in the sum of $150, and note numbered forty-seven, in the sum of $100, aggregating $3,250.

On September 29, 1941, plaintiff commenced this action to foreclose its hen and demanded judgment against the defendant for the sum of $3,250 upon the aforesaid notes, with interest from December 14, 1937. In the answer interposed by defendant, for a first affirmative defense, defendant alleged that the chattel mortgage in question was given to secure a lease which was fraudulently obtained of the defendant by plaintiff’s assignor and that the lease was void and the mortgage given was void and of no effect. Thereupon a motion was made by the plaintiff to strike out that defense on the ground that the issue had been adjudicated between the same parties against the defendant. The defense was stricken from the answer and defendant was given leave to serve an amended answer, which it did.

The amended answer contained denials of material allegations of the complaint and for a first affirmative defense defendant alleged that no demand had been made for the payment of the notes sued upon. For a second affirmative defense defendant pleaded a judgment in an action in the Municipal Court of the City of New York brought for the purpose of collecting an item of $1,000 which was alleged to be the rent for the month of November, 1939 of the real property, in which action one Sarah Seid was plaintiff and the defendant herein was defendant and wherein the complaint was dismissed on the merits and the judgment of dismissal," upon appeal, was affirmed. It was therein alleged that the lease, chattel mortgage and notes were held void and unenforceable by courts of competent jurisdiction. It was further alleged that the said Sarah Seid was a mere nominal party plaintiff as assignee and that the assignment to her was merely a colorable one for the purpose of testing the validity of the lease, chattel mortgage and notes without running the risk of being held hable for costs, and that the plaintiff was the real plaintiff in that action and was bound by the final decision therein. As part of that defense it was also alleged that a receiver in an action brought to foreclose the mortgage held by the Dry Dock Savings Institution on November 22, 1939, attempted to affirm the lease, chattel mortgage and notes and brought an action against the defendant for rent for the month of November, 1939, that the defendant defended in that action on the ground of fraud in the inducement of the lease and after a jury trial a verdict was rendered in favor of the defendant sustaining the defense of fraud and holding the lease, chattel mortgage and notes void and unenforceable. For a third affirmative defense the defendant alleged that the plaintiff’s assignor failed to carry out obligations of the original contract which constituted conditions precedent to defendant’s obligation to pay the notes in question. For a fourth affirmative defense the defendant alleged that the lease, chattel. mortgage and notes were voided and set aside by the foreclosure of the mortgage held by the Dry Dock Savings Institution which relieved the defendant of the necessity of making any further payments to the owner of the chattel mortgage or to its assignee. For a fifth affirmative defense the defendant alleged that some portion of the chattels sought to be recovered in this action were included in the inventory attached to the complaint by mutual mistake of the mortgagee and the mortgagor since title thereto was in third parties.

The plaintiff thereupon moved for summary judgment upon the complaint and the amended answer, accompanied by affidavits, under rule 1Í3 of the Rules of Civil Practice, and set up a judgment in the Supreme Court in which the present defendant was the plaintiff and the present plaintiff and a number of others were defendants. In that action the plaintiff sought to set aside the whole transaction and to be relieved from any further performance under its contract on the ground that the same was procured by the defendants’ fraud, concealment and false representations in its inception. After a trial, findings of fact and conclusions of law were made and judgment entered holding that there was no fraud in the inducement. In the.order made at Special Term it is stated that the decision in that action conclusively established that the plaintiff was an innocent purchaser for value of the promissory notes executed and delivered by the defendant and, under those circumstances, no triable issue was presented and the motion to strike out the amended answer and for summary judgment in favor of the plaintiff was granted. Thereupon summary judgment was docketed for the foreclosure of the lien and for the amount demanded by the plaintiff in the complaint. That judgment has been affirmed by the Appellate Division by a divided court but it appears that the result of the rescission suit in the Supreme Court was considered on appeal to settle the issues in the instant suit.

The judgment in the rescission action was not res judicata as to any issue set up by the defendant in the amended answer. It has been pointed out that the issue of fraud set up in the original answer was stricken out at Special Term. No appeal has been taken from the order entered thereon. The amended answer, in consequence, does not plead fraud as a defense. Upon this motion for summary judgment the order striking out the defense of fraud was not open to revision, nor could it be revised upon the appeal from the summary judgment entered thereafter since it is not specified in the" notice of appeal. It follows that we may not consider upon this appeal whether there has been a conclusive determination that the instruments upon which the plaintiff sues were not tainted by fraud or consider any other question of law or fact relating to the defense which has been stricken out. The only issue that appears necessary and material to the decision in the Supreme Court rescission action was that of the alleged fraud in the inception of the contract.

A substantial question of fact is presented by the answer whether the plaintiff’s assignor failed to carry out obligations of the original contract which constituted conditions precedent to defendant’s obligation to pay the notes in question. That-issue was not presented, tried or necessarily involved, material or determined in the rescission action. The estoppel extends to the material facts which are in issue between the parties to the action, and to such as necessarily bear upon, control and are essential to the adjudication made.” (House v. Lockwood, 137 N. Y. 259, 270). “A judgment does not operate as an estoppel in a subsequent action between the parties as to immaterial or unessential facts, even though put in issue by the pleadings and directly decided.” (Rudd v. Cornell, 171 N. Y. 114, 128; see, also, Genet v. Delaware & Hudson Canal Co., 170 N. Y. 278.) If that issue is determined in favor of the defendant, then a further question of fact is presented as to whether the plaintiff is an innocent purchaser for value against whom a defense based upon such failure of plaintiff’s assignor to perform conditions precedent to defendant’s liability would not be available. Appellant asserts in the instant action that the plaintiff is not a holder in due course of the notes on which the present suit is based. That issue is not concluded by the judgment in the rescission suit (Silberstein v. Silberstein, 218 N. Y. 525). Respondent asserts in its brief in this court that it “ never claimed to be a holder in due course ’ of the notes, but merely an assignee of Cornell Arms, Inc.” If respondent is a mere assignee, the defense of nonperformance of the conditions precedent is material (Personal Property Law, § 41, subd. 3; Cons. Laws, ch. 41; Siebert v. Dunn, 261 N. Y. 237; Restatement of the Law of Contracts, § 167) and is open to trial in this action in spite of the decision in the rescission action as we have pointed out above, since the only issue necessarily there presented was that of fraud in the inception of the contract.

Upon the hearing on the motion for summary judgment the respondent offered in evidence as an exhibit the judgment roll in another action in which one David Gold was the plaintiff and the present appellant was the defendant. That action was brought in the Municipal Court of the City of New York on August 4, 1941. Gold, who was the president of Cornell Arms, Inc., sued Nach-Haus Leasing Corporation to recover on one of the promissory notes for $150 and protest fees and interest. The defendant in that action set up as a defense fraud in the inception of the contract and asserted that there was no liability on that account on the note and in the bill of particulars it appears that the defendant was relying on the same' issue as that tendered in the Supreme Court action where he asked for a rescission of the contract. That judgment can furnish no ground for the striking out of the answer of defendant and for summary judgment for plaintiff in this case for reasons similar to those barring the judgment in the Supreme Court action as an estoppel.

The records in the actions which are pleaded as affirmative defenses in this action were not before the court on the motion for summary judgment, nor was any part of the record in the Supreme Court action, except the complaint, findings and judgment, before the court. There is nothing here upon which a determination can be made as to the effect of the judgments pleaded by the defendant upon its freedom from liability. That must be determined when the records are before the court.

Upon the foregoing triable issues of fact and, perhaps, upon others which we do not pause to develop, depends the right of the plaintiff upon the pleadings here presented to recover the amount, if any, that may be due and owing to it under the contract of December 14,1937, its right to foreclose its lien upon the chattels and to recover any deficiency.

The answer may not be stricken out and summary judgment entered in favor of the plaintiff under rule 113 of the Rules of Civil Practice where the evidentiary facts set up in the moving papers fail to establish the cause of action sufficiently to entitle plaintiff to judgment or where a triable issue of fact other than the question of the amount of damages for which judgment should be granted appears. The record in this case does not present a case for summary judgment.

The judgments should be reversed and the niotion for summary judgment denied, with costs to the appellant to abide the event. (See 289 N. Y. 650, 761, 848.)

Lehman, Ch. J., Lotjghran, Finch, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.