author: Lehman, Ch. J.

text:
    The People of the State of New York, Respondent, v. Richter’s Jewelers, Inc., Morris Richter and Alan Cutler, Appellants.
    Argued June 15, 1943;
    decided October 21, 1943.

      Melvin A. Albert and Milton C. Weisman for appellants.
    The conviction should be reversed. The admission into evidence, over timely objection, of property illegally seized constituted a violation of the defendants’ right against self-incrimination. (State Const., art. I, §§ 1, 6, 12; People v. Defore, 242 N. Y. 13; People v. Reiss, 255 App. Div. 509; Steinhart v. Mendocino County, 137 Cal. 575; Judd v. Board of Education, 278 N. Y. 200; Boyd v. United, States, 116 U. S. 616; Olmstead v.

      United States, 277 U. S. 438; Byars v. United States, 273 U. S. 28; Gouled v. United States, 255 U. S. 298; Hague v. Committee for Industrial Organisation, 101 F. 2d 774; Nueslein v. District of Columbia, 115 F. 2d 690; Weeks v. United States, 232 U. S. 383; United States v. Lefkowits, 285 U. S. 452; People ex rel. Boyle v. Cruise, 197 App. Div. 705, 231 N. Y. 639; Matter of Wendell v. Lavin, 246 N. Y. 115; Association for Protection of Adirondacks v. MacDonald, 253 N. Y. 234; Countryman v. Norton, 21 Hun, 17.) The law as enunciated in People v. Defore (242 N. Y. 13) is not applicable to the facts at bar, to things lawfully possessed. (People v. Hochstim, 36 Misc. 562; People v. Manko, 189 N. Y. Supp. 357; People v. Jakira, 118 Misc. 303; Weeks v. United States, 232 U. S. 383; Silverthorne Lumber Co. v. United States, 251 U. S. 385; Agnello v. United States, 269 U. S. 20; United States v. Lefkowits, 285 U. S. 452; Byars v. United States, 273 U. S. 28; Nueslein v. District of Columbia, 115 F. 2d 690; Brown v. United States, 83 F. 2d 383; Henderson v. United States, 12 F. 2d 528.) The constitutional amendment (State Const., art. I, § 12) requires a reversal of the doctrine enunciated in the Defore case. (Matter of Oliver Lee & Co.’s Bank, 21 N. Y. 9; Barnes v. Arnold, 45 App. Div. 314, 169 N. Y. 611; Gouled v. United States, 255 U. S. 298; Steinhart v. Mendocino County, 137 Cal. 975; Pine Martin Mining Co. v. Empire Zinc Co., 90 Col. 529.) The rule enunciated in the Defore case is erroneous. (People v. Adams, 176 N. Y. 351; United States v. Old Dominion Warehouse, 10 F. 2d 736; People v. Jakira, 118 Misc. 303; People v. Creeden, 281 N. Y. 413.) There was no evidence sufficient to warrant a conviction of any defendant. The conviction of the defendants should be reversed since the information is fatally defective. (People v. Webster, 17 Misc. 410; People v. Gregg, 59 Hun, 107; People v. Tremaine, 129 Misc. 650; People v. Henderson, 192 App. Div. 852.)

      Frank S. Hogan, District Attorney (David Biesman, Stanley H. Fuld and Bernard L. Alderman of counsel), for respondent.
    The defendants’ guilt was established beyond a reasonable doubt. (People v. Federated Radio Corp., 244 N. Y. 33; People v. Clarke, 252 App. Div. 122; People v. Garten, 235 App. Div. 641; People v. Wahl, 39 Cal. App. 771; State v. Beacon Pub. Co., 141 Kan. 734; People v. Garrell, 250 App. Div. 720; People v.
      Cooper, 200 App. Div. 413; United States v. Winslow, 195 F. 578, 227 U. S. 202.) The diamond and the sign advertising it were properly received in evidence. (Lisansky v. United States, 31 F. 2d 846, 279 U. S. 873; Linn v. United States, 234 F. 543; United States v; Hart, 214 F. 655; Chandler v. State, 93 Fla. 1063; United States v. Hoyt, 53 F. 2d 881; State v. Brown, 82 Wash. 100; People v. Bain, 359 Ill. 455; Thompson v. United States, 10 F. 2d 781.) The articles were not unreasonably seized. (Georgio v. Batterman, 134 App. Div. 139; Fusaro v. McKennell, 120 Misc. 434; People v. Esposito, 118 Misc. 867.) Under all the circumstances, the seizure was not an unreasonable one. (Haywood v. United States, 268 F. 795; Dunham v. Ottinger, 243 N. Y. 423; United States v. B. & M. External Remedy, 36 F. 2d 53; Go-Bart Importing Co. v. United States, 282 U. S. 344; Carroll v. United States, 267 U. S. 132; Pong Ying v. United States, 66 F. 2d 67; Van Hook v. City of Helena, 170 Ark. 1083; Victor v. State, 141 Fla. 508; Patterson v. Comm., 252 Ky. 285; Youman v. Comm., 189 Ky. 152; Hyde v. United States, 225 U. S. 347.) Even if the articles had been illegally obtained, the evidence would not thereby have been rendered inadmissible. (People v. Defore, 242 N. Y. 13, 270 U. S. 657.) The rule of the Defore case was not affected by the amendment (art. I, § 12) to the State Constitution. (People v. Kuhn, 172 Misc. 1097; People v. La Combe, 170 Misc. 669; Terrano v. State, 59 Nev. 247; State v. Fleckinger, 152 La. 337; Salinger v. United States, 272 U. S. 542; Robertson v. Baldwin, 165 U. S. 275; Mattox v. United States, 156 U. S. 237.) The rule of the Defore case applies whether the property is contraband or lawfully possessed. (People v. Adams, 176 N. Y. 351; People v. Bowen, 120 Misc. 342, 207 App. Div. 901; People v. Mayen, 188 Cal. 237; State v. Griswold, 67 Conn. 290; State v. Tonn, 195 Iowa 94; State v. Fiske, 117 Kan. 69; State v. Wallace, 162 N. C. 622; State v. Guida, 118 N. J. L. 289; State v. Ware, 79 Ore. 367; West Greenville v. Harris, 159 S. C. 526.) Public policy and reason dictate adherence to the Defore case rule. (People v. Gonzales, 20 Cal. 2d 165; State v. Nelson, 231 Iowa 177; Meisinger v. State, 155 Md. 195; Terrano v. State, 59 Nev. 247; State v. Black, 135 Atl. 685; Commonwealth v. Dabbiero, 290 Penn. St. 174; State v. Pilon, 163 Atl. 571; People v. Defore, 242 N. Y. 13; People v. Chiagles, 237 N. Y. 193; People v. Adams, 176 N. Y. 351, 192 U. S. 585; People v. Gardner, 144 N. Y. 119; State v. Frye, 58 Ariz. 409. There was no variance between information and proof.
   Lehman, Ch. J.

An Inspector of Weights and Measures of the Department of Markets of the City of New York, accompanied by another employee of the Department, entered a store operated by the defendant Richter’s Jewelers, Inc., and asked to be shown a ring which was displayed in the store window with a tag attached stating:“ 1 Ct. Perfect Diamond. Platinum setting, $265.” She was assured by the salesman, the defendant Cutler, that the diamond in the ring was, in fact, a perfect one-carat stone and that the price had been reduced from $350 to stimulate business.” Believing, or at least suspecting, that the diamond weighed less than one carat and was imperfect, the inspector insisted on retaining the ring and the tag, promising to return the ring if upon examination it met the description upon the tag. Her right to retain the ring.and tag was immediately challenged by the defendant Morris Richter, the president and manager of the corporation. He sent for his attorney, but the inspector refused to give up either the ring or the tag. Richter took the tag away from- her but was told by his attorney to return it. An information was filed charging the three defendants with violation of section 421 of the Penal Law, the offense which is popularly known as “ Publishing a misleading advertisement.” The defendant Richter was charged also with assault and unlawfully interfering with a public officer in the performance of her duty.

The defendants do not dispute that the ring was imperfect and that it weighed less than a carat. They produced evidence intended to show that the tag, intended for a perfect, one-carat diamond, had been attached by innocent mistake to an inferior smaller stone. The Court of Special Sessions might have accepted the explanation if it had chosen. It was not bound to do so. In any event, though innocent error might render the offense venial, a statement of fact which is untrue, deceptive, or misleading, placed upon a tag ‘ ‘ with intent to sell or in any wise dispose of merchandise ” constitutes a violation of section 421 of the Penal Law even when the statement is made without “ actual evil design or contrivance to perpetrate fraud or injury upon others.” The statutory offense is committed by material misrepresentations intended to influence the bargain ” though at times such misrepresentations may be due to lack of care rather than to dishonesty. (People v. Federated Radio Corp., 244 N. Y. 33, 39, 41.)

The Court of Special Sessions found all the defendants guilty of a violation of section 421 of the Penal Law, as charged in the information, and found the defendant Richter guilty also of assault as charged. The Appellate Division unanimously affirmed the judgments convicting the defendants upon the charge of violation of section 421 but reversed, Martin, P. J., dissenting, the judgment convicting Richter upon the" charge of assault and dismissed that charge. The court held that the seizure of the ring and tag was unlawful, and that the defendant Richter committed no offense by using force to prevent an officer of the law from doing an unlawful act. The defendants have appealed to the court by permission of the writer of this opinion. No appeal has been taken by the People. The evidence produced at the trial, if competent, is sufficient to sustain the judgments of conviction which we must review and we find no merit in the claim that the information charging the offense is fatally defective. The appellants rely mainly upon the contention that the ring and tag were seized unlawfully by the inspector and that property so seized cannot be received in evidence without violation of the right or privilege of the defendants, guaranteed by the Constitution of the State “ to be secure * * against unreasonable searches and seizures ” (art. I, § 12) and that they shall not be compelled to be witnesses against themselves. (Art. I, § 6.)

The People urge, at the outset, that in this ease there has been no unreasonable or unlawful seizure. We do not pass upon that contention now. The Appellate Division has, as we have said, held otherwise, and no appeal has been taken from its judgment in favor of the defendant Richter based upon that holding. In People v. Adams (176 N. Y. 351, 358) this court said that the court, when engaged in trying a criminal cause, will not take notice of the manner in which witnesses have possessed themselves of papers, or other articles of personal property, which are material and properly offered in evidence. ’ ’ That is true, the court held, even where the evidence to which objection is made consists of the papers of a defendant relating to his private affairs which were offered in evidence only for the purpose of furnishing standards of the defendant’s handwriting and showing that the office in which other papers relating to the alleged offense were found was occupied by the defendant. ‘‘ The manner in which the witnesses for the People became possessed of the documentary evidence is a matter of no importance ” (p. 359). Its introduction in evidence, even if illegally seized by public officers, the court said, constitutes no violation either ‘ ‘ of the Bill of Rights, which protects a citizen against unreasonable searches and seizures ” or of the constitutional right of a defendant in a criminal case, to refuse to become a witness against himself. The judgments of conviction which we are now reviewing must be affirmed unless the court now rejects what was said and decided in People v. Adams.

We should not upon this appeal consider the question whether the seizure of the ring and tag was unlawful and in violation of the provisions of the Constitution if we adhere to the ruling that “ the manner in which the witnesses for the People became possessed of the * * * evidence is a matter of no importance.”

The decision in People v. Adams was affirmed by the Supreme Court of the United States in February 1904 (Adams v. New York, 192 U. S. 585, 597), the court saying: We think there was no violation of the constitutional guaranty of privilege from unlawful search or seizure in the admission of this testimony. Nor do we think the accused was compelled to incriminate himself * * *. He was not compelled to testify concerning the papers or make any admission about them.” More than twenty years after that decision, the question was again presented to this court whether evidence of criminality, procured by an act of trespass, is to be rejected as incompetent for the misconduct of the trespasser.” (People v. Defore, 242 N. Y. 13, 19.) As in the earlier case the “ act of trespass ” was an unlawful seizure of the evidence by a police officer. In the meanwhile the Supreme Court of the United States in a series of judgments had overruled its own judgment in Adams v. New York ” and we recognized that though these later judgments “ do not bind us, for they construe provisions of the Federal Constitution, the Fourth and Fifth Amendments, not applicable to the States ” yet “ they merit our attentive scrutiny.” .The careful scrutiny which the court then gave to these later judgments failed to induce the court to accept ‘ ‘ the new doctrine ’ ’ that the prohibition against unreasonable search and seizure embodies a public policy not otherwise revealed in the Constitution, statutes or judicial decisions of the State that evidence so obtained shall not be used in any manner. The court pointed out, in an opinion by Cardozo, Ch. J., that in New York, immunity from unreasonable search and seizure is the creature, not of constitution, but of statute. (Civil Rights Law, § 8.) The Legislature, which created it, has acquiesced in the ruling of this court that the prohibition of the search did not anathematize the evidence yielded through the search.” Rejecting the Federal rule and reaffirming the rule of the Adams case ” the court said: “ We mus't hold it to be the law until those organs of government by which a change of public policy is normally effected, shall give notice to the courts that the change has come to pass.” (People v. Before, 242 N. Y. 13, 25.)

Since that decision, no organ of government ” has given notice to the courts that the change has come to pass. True, the immunity from unreasonable search and seizure is no longer a creature of statute, for in 1938 the statute was incorporated in the Constitution. The language remains the same as the language of the Civil Rights Law when this court defined its scope in People v. Defore (supra) and is the same as the language of the Federal Constitution. Doubtless if the effect of that language had not been previously determined authoritatively by this court and if the Legislature had not for almost forty years acquiesced in that ruling, argument might be made that ordinarily the same language in the Constitution of the State of New York and in the Constitution of the United States should be given the same effect and that a sound public policy dictates the conclusion that the constitutional right of immunity of the individual from unreasonable search and seizure should be implemented by rejection of evidence obtained by public officers in violation of the rights of the individual. Even now the Legislature may, if it chooses, give heed to such arguments. This court cannot properly do so.

The framers of the new section of the Constitution were fully informed that in this State the rule was firmly established by old decisions that rejection of evidence obtained by a public officer through unreasonable search and seizure is not the legal consequence of the officer’s trespass. Certainly it cannot be said that the incorporation of the statutory prohibition into the Constitution without change of language was intended to change the scope and effect of the prohibition in a matter of grave importance about which much controversy had raged and is still raging. The intention to leave the rule unchanged is clear even without resort to the proceedings of the convention, and examination of those proceedings merely confirms that conclusion. There is room for discussion whether the convention acted wisely in rejecting proposals to change the New York rule formulated in People v. Defore. There is hardly room for discussion that the convention decided that no change in the rule should be made by it, leaving the Legislature free, as it had been before, to determine whether and in what circumstances evidence obtained by trespass should be rejected.

We are told, however, that in the Defore case the court decided only that under the New York rule contraband,” though seized unlawfully, might be introduced in evidence, and that the court put aside ” the question whether in some other situation ” there may not be need to qualify or soften ” the broad rule adopted by the court in People v. Adams that the constitutional immunity from compulsory self-incrimination is limited to cases where incriminatory disclosure had been extorted by the constraint of legal process. Now the appellants argue that a distinction should be drawn in the application of the rule between those cases where the evidence is a “ contraband ” article and those cases where the evidence is a document or article in the innocent possession of the person from whom it is taken. We find no adequate basis in reason or authority for such a distinction. Indeed, though in the Defore case the rule was applied to contraband, yet in the Adams case it was, as we have said, applied to private papers in the lawful possession of the defendant. When, in the Before case the court put aside the question whether the broad rule there applied might be qualified in some other situation, it added: “ In putting it aside, we would not be understood as expressing, even by indirection, a belief that change is called for ” (p. 25). We conclude that the objection to the introduction of the evidence was properly overruled, regardless of whether or not the evidence was obtained unlawfully. Our conclusion in regard to the scope and effect of the constitutional immunity makes it unnecessary to consider other contentions of the People.

The judgment should be affirmed.

Lottghban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Albert S. Oshrin, Appellant, v. Celanese Corporation of America, Respondent, et al., Defendants.
    Argued June 17, 1943;
    decided October 21, 1943.

      Louis Busman for appellant.
    The corporate defendant was without standing to move to dismiss the complaint as against itself. (Flynn v. Brooklyn City R. R. Co. 158 N. Y. 493; Brinckerhoff v. Bostwick, 88 N. Y. 52; O’Connor v. Virginia Passenger & Power Co., 184 N. Y. 46; Young v. Equitable Life Assur. Soc., 112 App. Div. 760; Monahan v. Kenny, 248 App. Div. 159; Godley v. Crandall & Godley Co., 181 App. Div. 75, 227 N. Y. 656; Meinhard v. Salmon, 249 N. Y. 458.) The complaint is abundantly replete with acts of abuse of the fiduciary relationship committed by the defendant-directors for their own personal profit with respect to inflated dividends, excessive salaries, use of the corporate fund for private purposes and the agreement of 1933, and it was therefore error, on the merits, to dismiss the complaint. (Brinckerhoff v. Bostwick, 88 N. Y. 52; Pollitz v. Wabash R. R. Co., 207 N. Y. 113; Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185; Everett v. Phillips, 288 N. Y. 227; Liebman v. Auto Strop Co., 241 N. Y. 427; Sage v; Culver, 147 N. Y. 241; Frank v. Carlisle, 282 N. Y. 507; Walsh v. Ameringen-Haebler, Inc., 257 N. Y. 478; Gerdes v. Reynolds, 281 N. Y. 180; Winter v. Anderson, 242 App. Div. 430; Geddes v. Anaconda Mining Co., 254 U. S. 590; Hine v. Lausterer, 135 Misc. 397, 232 App. Div. 719, 257 N. Y. 523; Godley v. Crandall & Godley Co., 212 N. Y. 121.)

      Samuel Gottlieb, 1. Gainsburg and Robert Nias West for respondent.
    The cross motion to dismiss the complaint was properly made by the defendant corporation, because: (a) its own independent interests were placed in peril by the restraints that plaintiff sought against the fulfillment of the corporation’s contract with the defendants Dreyfus; and (b) since under recent statutory enactment (General Corporation Law, § 61-a) the corporation is charged with payment for the successful defense by directors of a derivative action, the corporation itself may protect its interests by actively opposing a groundless law suit. (People v. Globe Mut. Life Ins. Co., 91 N. Y. 174; Goldman v. Corn, 111 App. Div. 674; Godley v. Crandall & Godley Co., 181 App. Div. 75; 227 N. Y. 656; Flynn v. Brooklyn City R. R. Co., 158 N. Y. 493; Brock v. Poor, 216 N. Y. 387; New York Dock Co. v. McCollum, 173 Misc. 106; Weinberger v. Quinn, 264 App. Div. 405, 290 N. Y. 635; Hayman v. Morris, 179 Misc. 265.) Both causes of action of the complaint are insufficient in law upon the face thereof. Plaintiff’s pleading 'abounds in legal conclusions which find no support in the meagre facts alleged. (Blaustein v. Pan American Petroleum & Transport Co., 263 App. Div. 97; New York, Lake Erie & Western R. R. v. Nickals, 119 U. S. 296; Beveridge v. New York El. R. R. Co., 112 N. Y. 1; Liebman v. Auto Strop Co., 241 N. Y. 427; City Bank Farmers Trust Co. v. Hewitt Realty Co., 257 N. Y. 62; Bryan v. Aikin, 10 Del. Ch. 1; Gallin v. National City Bank, 152 Misc. 679; Cox v. Leahy, 209 App. Div. 313; Bankers Trust Co. v. Dietz Co., 157 App. Div. 594; Weinberger v. Quinn, 264 App. Div. 405, 290 N. Y. 635; Gerdes v. Reynolds, 281 N. Y. 180; Nicholson v. Close, 258 App. Div. 488; Glantz v. Blakely, 264 App. Div. 197; Lawyers’ Advertising Co. v. Consolidated Ry. L. & Ref. Co., 187 N. Y. 395; Hall v. Trans-Lux Daylight Picture Screen Corp., 20 Del. Ch. 78; Burden v. Burden, 159 N. Y. 287; Wood v. Amory, 105 N. Y. 278; Rous v. Carlisle, 261 App. Div. 432.) The complaint is fatally defective in failing to allege a demand upon the corporation .that suit be instituted and unreasonable refusal on its part to sue, or to plead facts establishing the futility of such a demand. (Flynn v. Brooklyn City B. R. Co., 158 N. Y. 493; Isaac v. Marcus, 258 N. Y. 257; Clifford v. Metropolitan Life Ins. Co., 264 App. Div. 168.)
   Lehman, Ch. J.

The allegation of paragraph twenty-first of the complaint “ that the individual defendants as directors did, by common accord and understanding, and as part of the plan pursued by the defendants, Camille Dreyfus and Henry Dreyfus, for the general conduct of the business and affairs of the corporate defendant, combine their common voting strength and power as such directors so as to cause the appointment of all or nearly all of them to corporate positions paying very lucrative emoluments ” is, standing alone, clearly insufficient to indicate that all or any of the individual defendants committed any wrong. The succeeding paragraphs specify “ the annual salaries or other compensation received by them ’ ’ and that ‘ ‘ all or nearly all of the salaries so paid, .as set forth in the two preceding paragraphs, are excessive and' disproportionate to the services rendered therefor by the recipients thereof and were not fixed or paid in the best interests of the corporate defendant, but were so fixed and authorized, collectively, by said individual defendants solely for their personal gain and to the detriment of the corporate defendant.” Though the allegation that a salary is “ excessive ” may perhaps in appropriate context be accepted as an allegation of fact rather than a conclusion of the pleader, yet in this case the allegations contained in paragraphs twenty-second and twenty-third entirely fail to show that all the individual defendants or any particular individual defendant either took part in voting an excessive salary to any director or received an excessive salary himself. Such allegations are insufficient to constitute a cause of action. Walsh, v. Van Ameringen-Haehler, Inc. (257 N. Y. 478) is not authority to the contrary. Though in that case the court held that ‘ ‘ the allegation that the directors voted themselves excessive salaries is sufficient to call upon the defendants to answer the complaint, ’ ’ we pointed out in the case of Gerdes v. Reynolds (281 N. Y. 180, at p. 185) that we so held because proof and finding of such payment ” (i. e., payment to all the directors of excessive salaries voted to themselves by all the directors) would, of course, dictate the conclusion that the directors must restore to the corporation the moneys which they had no right to take from its treasury.” Here the complaint contains no allegations which would permit proof to support a similar finding against any defendant named in the complaint.

The judgment should be affirmed, with costs.

Loughran, Rippey, Lewis, Conway and Thacher, JJ., concur; Desmond, J., dissents and votes to reverse the judgments appealed from insofar as they dismiss the first cause of action and to deny the motion to dismiss on the ground that, under the rule of Walsh v. Van Ameringen-Haebler, Inc. (257 N. Y. 478) the allegations of paragraphs twenty-first, twenty-second and twenty-third state a cause of action.

Judgment affirmed.


author: Per Curiam.

text:
    In the Matter of Thomas A. Aurelio, Respondent. S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Defendants; Matthew M. Levy, Appellant.
    Argued October 21, 1943;
    decided October 22, 1943.

      David, Halper and Harold P. Spivak for appellant.
    So much of the order appealed from as granted petitioner’s application to consolidate the lines of.the three parties, should be reversed. (Matter of Callahan, 200 N. Y. 59; Matter of Hopper v. Britt, 203 N. Y. 144; 204 N. Y. 524; Matter of Gilfillan, 207 N. Y. S. 628, 212 App. Div. 855, 240 N. Y. 579; Matter of Callaghan v. Voorhis, 252 N. Y. 14; Matter of Lynn v. Nichols, 254 N. Y. 630; Matter of Crane v. Voorhis, 257 N. Y. 298; Matter of Haviland v. Ellrodt, 268 N. Y. 488; Matter of Brennan, 242 App. Div. 789; Matter of LaGuardia v. Cohen, 266 N. Y. S. 739.) So much of the order of Special Term as compelled the Board, of Elections to print Matthew M. Levy’s name as a candidate of two independent bodies upon the ballots in only a single line was reversible error. (Matter of LaGuardia v. Cohen, 266 N. Y. S. 739; Matter of Haviland v. Ellrodt, 268 N. Y. 488.)

      Robert H. Elder and Edward J. Fontana for Thomas A. Aurelio, respondent.
    The placing of the name of Levy in a separate line, in addition to the line of the American Labor Party, is contrary to section 249 of the Election Law and recent adjudicated cases. (Matter of Shaeffer, 237 App. Div. 278; Matter of Robinson v. Brock, 255 App. Div. 308; Matter of Haskell v. Voorhis, 246 N. Y. 257; Matter of Callaghan v. Voorhis, 252 N. Y. 14.)

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel of counsel), for Board of Elections of City of New York.
   Per Curiam.

The appellant, Matthew M. Levy, was nominated by the American Labor Party for the office of Justice of the' Supreme Court. In accordance with the provisions of section 249 of the Election Law his name will appear on the voting machine or ballot in the row or column containing generally the names of candidates nominated by such party * * * for other offices ’ ’. He has also been nominated for the same office by independent certificates of two organizations or groups of voters who have selected respectively the names of the Integrity Party and Justice Party. The Board of Elections ruled that his name should appear not only on the row or column containing the names of candidates nominated by the American Labor Party for other offices, but also on a separate row or column as candidate of the Integrity Party and on a third row or column as candidate of the Justice Party. Another candidate for the same office who had been nominated by Democratic and Republican parties brought proceedings in the Supreme Court in accordance with article 14 of the Election Law to compel the Board of Elections to place the appellant’s name on the voting machines and official ballots only in the column and line of the American Labor Party, which nominated him for said office, with its emblem, and with the names of the Integrity. Party and the Justice Party, independent bodies which nominated him for the same office, appearing on said American Labor Party line in connection with his name ”.

The appellant alleged among other things, in an affidavit filed in opposition, that though the petitioner was nominated by both the Democratic and Republican parties, both parties have attempted to “ repudiate ” their candidate and that the Integrity Party was formed by the Democratic Party to afford Democratic voters a ready opportunity of defeating their unwanted candidate by electing me through a vote registered on an independent line which would reflect truly and exclusively the Democratic anti-petitioner vote ” and that these voters ‘ ‘ might refrain from voting for me entirely, rather than to cast a vote for me on the American Party line.” The petitioner urged that he would be prejudiced severely if his name appeared only on that line and that6 ‘ a substantial number of voters who might desire to vote for me on the Integrity or the Justice Party lines, but who might not vote for me on any other line would, in effect, be disfranchised with regard .to the particular office involved.”

The court at Special Term found that ‘‘ to hold that Mr. Levy is entitled to have his name appear only on one row as the candidate of the American Labor Party, although alongside his name in that row would also appear the emblems and tbe names of the two independent bodies which have also nominated him as their candidate, would tend to confuse and mislead the independent voters who wish to support him as an independent and not as the candidate of any* political party.” That finding has not been reversed by the Appellate Division and is binding upon us.

The form of ballots on voting machines ” is defined in section 249 of the Election Law and there is no provision in that section which sanctions placing Mr. Levy’s name in any line other than that on which appear the names of candidates nominated by the American Labor Party. We have, however, held in analogous cases that “ there must be no unnecessary discrimination between the independent and the party voter in respect of the facilities offered to him for a prompt and intelligent and ready expression of his choice.” Eegulations and restrictions which fail to give effect to this rule are unconstitutional and must be disregarded so far as they interfere with the full and free choice of all voters — party and independent voters alike. Matter of Crane v. Voorhis (257 N. Y. 298, 304) and cases there cited. The finding of the trial court, supported by proof and affirmed by the Appellate Division, conclusively establishes that in this case strict observance of the letter of the statute would interfere unnecessarily with the “ intelligent and ready expression of Ms choice ” by an independent voter. In such circumstances the court at Special Term could properly direct that Mr. Levy’s name should appear as candidate of the American Labor Party in column 5, row C, and his name as candidate of the two independent bodies in column 5, row D.

The order of the Appellate Division should he reversed and that of the Special Term affirmed, without costs.

Lehman, Ch. J., Loughran, Bippey, Lewis, Conway, Desmond and Thacher, JJ., concur.

Ordered accordingly.


author:
Lewis, J.
      Thacher, J.

text:
    Amy E. Mohrmann, Appellant and Respondent, v. Freda M. Kob, as Committee of William G. Mohrmann, an Incompetent Person, et al., Respondents and Appellants.
    Argued May 18, 1943;
    decided November 18, 1943.

      Jacob W. Friedman and Oscar Habas for plaintiff, appellant and respondent.
    The committee of an incompetent may not maintain an action for divorce. (Kaplan v. Kaplan, 256 N. Y. 366; Mainzer v. Avril, 108 Misc. 230; Gould v. Gould, 141 Misc. 766; Matter of Babushkin [Hirsch], 176 Misc. 911; Worthy v. Worthy, 36 Ga. 45; Birdzell v. Birdzell, 33 Kan. 433; Garnett v. Garnett, 144 Mass. 379; Thayer v. Thayer, 9 R. I. 377; Baker v. Baker, L. R. 5 Prob. Div. 142, 6 Prob. Div. 12; Mohler v. Shank, 93 Iowa 276; Bradford v. Allen, 89 Ill. 78; Hollis v. Drew Theological Seminary, 95 N. Y. 166; People v. Hawkins, 157 N. Y. 1; Glaser v. Glaser, 276 N. Y. 296; Matter of Rhinelander, 290 N. Y. 31; Matter of Hill, 264 N. Y. 349.) The commission of adultery by a wife does not relieve a husband of the obligations of a separation agreement, particularly when the terms provide for payments until divorce. (Randolph v. Field, 165 App. Div. 279; Egan v. Egan, 240 App. Div. 714; Hann v. De Freest, 178 N. Y. S. 414; Fearon v. Earl of Aylesford, 14 Q. B. Div. 792; Sweet v. Sweet, [1895] 1 Q. B. 12; Dixon v. Dixon, 24 N. J. Eq. 133; Galusha v. Galusha, 116 N. Y. 635; Waddey v. Waddey, 290 N. Y. 251.)

      Edwin B. Kenyon for defendants, respondents and appellants.
    The Appellate Division erred in affirming the order of Special Term striking the fourth affirmative defense which alleges the right of defendant incompetent to an absolute divorce as not alleging facts sufficient to constitute a defense. (Kaplan v. Kaplan, 256 N. Y. 366.) The plaintiff has forfeited her rights by the terms of the very agreement sued upon. To prevent an incompetent from defending himself and his estate is against public policy. An incompetent is a ward of the courts and both he and his property should be protected. (Kaplan v. Kaplan, 256 N. Y. 366.) A separation agreement does not affect the marital status of the parties and is not a bar to an action for a divorce. (Clark v. Fosdick, 118 N. Y. 7.) The Appellate Division erred in affirming the Special Term which declared as a matter of law that the fourth affirmative defense was not as such sufficient but should stand merely as a counterclaim. (Walter v. Walter, 217 N. Y. 439.) There is no theory of public policy on behalf of plaintiff to be subserved in this action.
   Lewis, J.

This appeal presents for decision a question expressly reserved by the opinion in Kaplan v. Kaplan (256 N. Y. 366). May an action for absolute divorce be maintained by the committee of an insane husband against the latter’s wife?

The marriage of the plaintiff, Amy E. Mohrmann and William G-. Mohrmann, on February 16, 1916, was followed after a brief interval by a separation of the parties. On June 1,1916, while living apart, they entered into a separation agreement under which the husband agreed to pay his wife a fixed sum each month for her maintenance and support. The husband conformed with the agreement until a date in 1921, when the required monthly payments ceased. By the present action the plaintiff-wife seeks to recover a sum in excess of $5,000 alleged to be due from her husband under the agreement for her maintenance from December 1, 1921, to October 31, 1941. The separation agreement upon which the action is based provides in part that — “ If the party of the second part [the wife] shall commit any act which shall entitle party of the first part to a divorce under the Laws of the State of New York, then upon stick divorce being obtained the provisions herein shall be null and void.” (Emphasis supplied.)

The defendant’s answer, after admitting allegations in the complaint that on'July 16,1923, the plaintiff’s husband, William GL Mohrmann was adjudged to be an incompetent person, pleads a number of affirmative defenses and counterclaims. Upon this appeal we are concerned solely with the fourth affirmative defense and counterclaim which alleges in substance that between June 1,1916, and the commencement of this action the plaintiff lived in adultery with a man who, during such relationship, became the father of “ several ” children born to the plaintiff. In addition there are pleaded allegations appropriate to an action for absolute divorce. (Civ. Prac. Act, §§ 1147, 1150, 1153.)

At Special Term, where the defendants responded to a motion by the plaintiff to strike from the answer several defenses and counterclaims, the fourth affirmative defense and counterclaim was stricken. The Appellate Division agreed with Special Term that the allegations of the fourth affirmative defense and counterclaim are insufficient in law as a defense but ruled that such allegations are legally sufficient to plead a counterclaim and modified the order accordingly. Upon granting to the plaintiff and the defendants separate motions for leave to appeal the Appellate Division certified the following questions for our decision: For the defendants — “ In so far as the Fourth Affirmative Defense contained in defendants ’ answer is concerned, was the order properly made? ” For the plaintiff — “ In so far as the counterclaim is concerned, was the order properly made ? ’ ’

At the outset it should be noted that we are not dealing with the ordinary matrimonial action in which a defendant spouse interposes a counterclaim for divorce. (Civ. Prac. Act, § 1168.) Here the plaintiff’s action is for money alleged to be due since 1921 under a separation agreement made in 1916 when, we may assume, both parties were competent and a valid marriage existed. By the fourth affirmative defense and counterclaim the defendants have pleaded facts upon which demand is made in behalf of the incompetent husband for an absolute divorce from the plaintiff. However, the demand for relief, predicated upon allegations found in the fourth affirmative defense and counterclaim, is — “that the defendant incompetent and the plaintiff be divorced and that their marriage be dissolved, and that such decree be entered nunc pro tunc as of the 1st day of June, 1916.” The defendants thus invoke the judicial process in 1941 to abrogate a valid marriage nunc pro tunc, as of June 1, 1916, because of the misconduct by the plaintiff wife alleged to have occurred on or since the latter date.

The function of orders nunc pro tunc is to correct irregularities in the entry of judicial mandates or like procedural errors. (Merrick v. Merrick, 266 N. Y. 120,122; Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & N. E. R. R. Co., 160 N. Y. 1, 7.) When a ruling has in fact been made but is improperly evidenced by a defective mandate, or by no mandate at all, an appropriate and suitable order or judgment which manifests the existence of a determination may subsequently be granted to take effect as of the.date of such determination.” (Merrick v. Merrick, supra, p. 122.) However, an order nunc pro tunc may not serve to record a fact, such as a divorce, as of a prior date when the fact did not then exist. “A court has no power to have a new order or ruling so entered, thus bringing into the record an element which did not previously exist. The facts must exist, and then if the record of them is imperfect or incomplete, it may be amended, but if the record shows the actual facts then no order can be properly made changing them so as to take the place of an act that was required to be previously performed. While a court may record an existing fact nunc pro tunc, it cannot record a fact as of a prior date when it did not then exist. ’ ’ (Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & N. E. R. R. Co., supra, p. 7; Stock v. Mann, 255 N. Y. 100, 103.)

In the present case no decree of divorce had been granted in 1916. Presumably a valid marriage between the plaintiff and William Gr. Mohrmann then existed. Indeed the plaintiff alleges in her complaint and the answer admits that such marriage took place on February 16,1916, and 1 ‘ that the plaintiff and defendant William Gr. Mohrmann were at all times and still now (sic) are wife and husband.”

If we rule, as did the Appellate Division, that the counterclaim now asserted in the incompetent’s behalf is sufficient in law as a pleading and the demand for relief thereunder is granted to the defendants, such an adjudication by an order nunc pro tunc would lead to the dissolution as of June 1, 1916, of a marriage which, upon conceded facts then existing, was valid. An order nunc pro tunc may not be put to such use.

We agree with Special Term and the Appellate Division that the allegations in the fourth affirmative defense and counterclaim upon which the defendants now seek an absolute divorce in behalf of the incompetent are not sufficient in law to constitute an affirmative defense to the plaintiff’s action. (Galusha v. Galusha, 116 N. Y. 635, 643-645 and see Randolph v. Field, 165 App. Div. 279, 283.) Such an affirmative defense by the defendants gains no support from the separation agreement, quoted in part above, which by its own terms becomes “ null and void ” only “ upon such divorce being obtained ”.

There remains the question whether the allegations in the fourth affirmative defense and counterclaim are sufficient in law to plead a counterclaim for absolute divorce — not effective nunc pro tunc as of June 1,1916, but as of the date of the judgment herein.

In Kaplan v. Kaplan (supra), where the ruling was that an action for separation may be brought by an insane person through her guardian ad litem, it was pointed out in the opinion (per Lehman, J., p. 370) that before the statutory action for an absolute divorce was created, actions for separation or limited divorce might be maintained in behalf of an incompetent. In such actions the relief which may be granted is based upon the continued existence of the marriage tie.” In the present case, however, the counterclaim seeks an absolute divorce involving the dissolution of a valid marriage which was concededly entered into upon the free consent of both parties.

Unlike the statutory situation in Massachusetts and Rhode Island (see Annotated Laws of Massachusetts, vol. 6, ch. 208, § 7, and Garnett v. Garnett, 114 Mass. 379, 380, 381; Cowan v. Cowan, 139 Mass. 377, 378, 379; Thayer v. Thayer, 9 R. I. 377), we find nothing in the statutes governing divorce in this jurisdiction (Civ. Prac. Act, art. 68) which by express statement or by reasonable inference may be construed to authorize the committee of an insane person to institute an action designed to abrogate the relationship thus created. The State has a vital interest in the preservation of the marriage status — an interest which the Legislature has guarded jealously by the enactment of those statutes which govern divorce. We think the'ruling of the Appellate Division in this case goes beyond the letter of those statutes, which are declaratory of the public policy of this State as it relates to divorce, and thus invades a field reserved exclusively for the legislative function.

We know that one of the chief factors to be considered in dealing with the inception of the marriage relation is the volition of the two parties involved. Of no less importance is volition where that relationship is dissolved. Adultery does not ipso facto dissolve a marriage. There is eminent authority for the statement that — “ Though the fact of adultery be made out, it does not follow, as a matter of course, that a divorce is to be awarded; for the remedy by divorce is purely a civil and private prosecution, under the control and at the volition of the party aggrieved, and he may bar himself of the remedy, in several ways, by his own act.” (2 Kent’s Commentaries [láth ed.] pp. 100, 101.)

It is a matter of choice by the innocent party who suffers the ignominy of unfaithfulness by a spouse, whether the judicial process will be set in motion to bring about a severance of the marriage tie because of such infidelity. That choice may depend upon a variety of circumstances peculiar to each case. We mention only two: the injured party may choose to give the errant spouse the benefit of condonation ■ — • which, significantly, remains in this State a statutory defense to an action for absolute divorce (Civ. Prac. Act, § 1153, subd. 2); or, because of religious affiliation or for other reasons which satisfy the demands of good conscience, the injured spouse may regard the bond of marriage as indissoluble. In any event the choice thus to be exercised is a right of election which is personal to the injured spouse. •

It has been suggested that the authority granted to the committee of the property of an incompetent person by section 1377 of the Civil Practice Act is broad enough in scope to include an action for divorce on behalf of the incompetent. We think that when the Legislature by section 1147 of the Civil Practice Act limited to “ a husband or wife ” the right to “ maintain an action against the other party to the marriage to procure a judgment divorcing the parties and dissolving the marriage by reason of the defendant’s adultery ”, the statutory restriction thus placed upon the right to bring such an action was not relaxed by the provisions of section 1377. The committee of the property.of an incompetent has the duty of protecting the property of his ward and for that purpose has been given by section 1377 a general power to maintain in his own name any action * * * which the person with respect to whom he is appointed might have maintained if the appointment had not been made.” A statute conferring upon the committee of the property of an incompetent a general power should not be construed to include the right to choose for the incompetent whether or not to ask the courts to dissolve the marriage tie in order to free the incompetent from its incidental obligations. It is our view that when the Legislature by section 1377 authorized the committee of the property of an incompetent person to bring “ any action or special proceeding ” in behalf of the incompetent, the use of the word “ any ” did not include an action for divorce which the Legislature has always treated separately and completely. (Civ. Prac. Act, art. 68; Erkenbrach v. Erkenbrach, 96 N. Y. 456, 463; Johnson v. Johnson, 206 N. Y. 561, 565; Waddey v. Waddey, 290 N. Y. 251, 253.)

An analogous situation, which also involves a personal right in which the element of volition is implicit, is the right of election granted to a surviving husband or wife to take an intestate share of the estate of a deceased spouse contrary to the terms of the decedent’s will. (Decedent Estate Law, § 18.) The right to such an election was granted by the Legislature (L. 1929, ch. 229) at a time when section 1377 of the Civil Practice Act was effective. If the Legislature had intended the scope of section 1377 to be as broad as has been suggested during our consideration of the present case there would have been no necessity to make special statutory provision by which the right of election in behalf of an incompetent might be exercised. That the Legislature did not so regard the scope of section 1377 is fairly to be inferred from the fact that when it was intended to grant in behalf of an incompetent spouse the right to make such an election the lawmakers, by express language, directed that ‘ ‘ the election as herein provided * * * may be made in behalf of an incompetent when authorized by the supreme court. ’ ’ (Decedent Estate Law, § 18, subd. 6.) With reference to the authority of a committee of the property of an incompetent person under section 1377 of the Civil Practice Act, to institute in behalf of an incompetent an action for the annulment of a marriage, see Walter v. Walter (217 N. Y. 439, 441-443).

In the present case, where the aggrieved spouse is an insane husband bereft of the ability to make intelligently the choice whether or not to seek a dissolution of his marriage, the fact is pressed upon us that unless a cause of action for divorce may be pleaded in his behalf by his committee, the plaintiff wife may subject him to grave injustice. The argument carries strong appeal but is more properly to be addressed to the Legislature. Until that body has enacted a statute which expressly or by clear implication authorizes a committee of an insane person to make that choice, the courts may not assume to grant that power. (See Mainser v. Avril, 108 Misc. 230, 232; Gould v. Gould, 141 Misc. 766, 768, 769; Matter of Babushkin [Hirsch], 176 Misc. 911, 912, 913; Stevens v. Stevens, 266 Mich. 446, 449; Birdzell v. Birdzell, 33 Kan. 433, 435, 436; Worthy v. Worthy, 36 Ga. 45, 46, 47; Mohler v. Shank’s Estate, 93 Iowa 273, 277-280; Dillion v. Dillion, 274 S. W. [Tex.] 217, 218-220; Higginbotham v. Higginbotham, 146 S. W. 2d 856 [Mo.] ; 2 Bishop on Marriage, Divorce and Separation [1891 ed.], §§ 523-525; 27 C. J. S., Divorce, § 89; 17 Am. Juris, pp. 290, 291, § 272; 70 A. L. R 964; 9 R C. L., Divorce and Separation, § 204.) We have not overlooked decisions to the contrary in foreign jurisdictions: Campbell v. Campbell, 5 So. 2d 401 (Ala.); Baker v. Baker, 5 Prob. Div. 142, 152, L. R. 1879-1880, Prob. Div. 142; affd. 6 Prob. Div. 12, L. R. 1881, Prob. Div. 12 (England).

A suggestion has also been made that the rights of the incompetent husband may be better protected by the interposition in his behalf of a partial defense in which are pleaded facts, including the husband’s incompetency, which have brought about a condition which it is said defeats the expressed intention of the parties that the separation agreement shall become null and > void upon the commission by the wife of an act of adultery which the husband successfully asserts as a ground for divorce. The validity of such a partial defense is not a subject which we may consider upon this appeal wherein the limits of our inquiry are fixed by questions certified by the Appellate Division. The questions which are certified limit the power of this court on review to answer such questions and no others.” (Bowlby v. McQuail, 240 N. Y. 684, 687. And see Grannan v. Westchester Racing Ass’n, 153 N. Y. 449, 459; Matter of McDonald, 211 N. Y. 272, 276.)

The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs. The question certified on the defendant’s appeal is answered in the affirmative. The question certified on the plaintiff’s appeal is answered in the negative.

Thacher, J.

(dissenting). This is an action brought by a wife against her husband (now an incompetent) and his committee to recover payments due under a separation agreement made in 1916. The agreement reads in part as follows: If party of the second part [wife] shall commit any act which shall entitle party of the first part [husband] to a divorce under the Laws of the State of New York, then upon such divorce being obtained the provisions herein shall be null and void.”

The defendant husband was adjudged incompetent in 1923. As a “ Fourth Affirmative defense, and as and by way of a counterclaim,” defendants have alleged that since the execution of the separation agreement the plaintiff has lived and still is living in open, continuous and notorious adultery with one who is the father of several children born to her. Other facts essential in an action for divorce are alleged. On plaintiff’s motion Special Term struck out these allegations as insufficient in law to constitute either a defense or a counterclaim. The Appellate Division, Second Department, has modified the order of Special Term by permitting these allegations to stand as a counterclaim but not as a defense.

The case is here by leave of the Appellate Division, which upon the appeal of the defendants certified the question: “ In so far as the Fourth Affirmative Defense contained in defendants’ answer is concerned, was the order properly made? ” Upon the plaintiff’s appeal the question certified is: In so far as the counterclaim is concerned, was the order properly made? ”

Civil Practice Act section 1377 provides in part as follows: ‘ ‘ A committee of the property may maintain in his own name, adding his official title, any action or special proceeding which the person with respect to whom he is appointed might have maintained if the appointment had not been made.”

In spite of this statutory language, the court has concluded that an action for divorce may not be maintained in behalf of the incompetent. In this conclusion I cannot concur. The opinion of the court correctly points out that nothing in the statutes covering divorce expressly or by reasonable inference authorizes the committee of an incompetent person to institute such an action, and the rule which has been generally accepted in other jurisdictions is that without'express statutory language authorizing such action by committees for incompetents, such authority will not be implied. But here nothing is left to implication. The statutory language is specific, and expressly includes ‘ any action or special proceeding ’ ’ which the incompetent “ might have maintained if the appointment ” of the committee ‘ ‘ had not been made. ’ ’ Surely it may not be inferred that this specifically all-inclusive language does not in terms include an action for divorce, or any other matrimonial action such as an action for separation. (See Kaplan v. Kaplan, 256 N. Y. 366.) Nor may we impute to the Legislature ignorance of the plain meaning of simple words.

The authorities in other states, cited in the opinion of the court, some holding that the committee or next friend may not bring such an action in behalf of an incompetent and some holding the other way, have arisen under statutes differing in terms, none of which, so far as the opinions disclose, expressly granted authority to bring any action or proceeding which the incompetent himself might have brought if he had not been declared incompetent.

None of these decisions goes further than Dillion v. Dillion (274 S. W. 217, Tex. Civ. App. 1925). In that case the statute employed general terms broad enough .to include an action for divorce ” but did not add words indicating that every action which the incompetent could bring might be brought by his committee. Many of the cases predicate decision upon inferences of legislative intent drawn from the nature of an action for divorce. Such inferences fail if the statutory language clearly expresses a deliberate intent to include every action or proceeding which the incompetent could have brought if competent. Such intent, clearly expressed in our statute, is made clear in some statutes by naming the committee in connection with the procedure for obtaining a divorce. This is the case in Rhode Island and Massachusetts. (Thayer v. Thayer, 9 R. I. 377; Cowan v. Cowan, 139 Mass. 377.) But when the Legislature of this State authorized the committee of an incompetent to bring any action which the incompetent himself might have brought if he had not been adjudged incompetent, it was not necessary to mention the rule again in outlining the procedure in an action for divorce.

The language of the Civil Practice Act, section 1377, was under consideration by this court in Walter v. Walter (217 N. Y. 439), where it was contended that a committee of an incompetent was entitled to maintain an action to annul the marriage of the incompetent on the ground of lunacy. It was, however, concluded that the express provision with relation to an action to annul a voidable marriage authorizing relatives, a next friend, and the incompetent after restoration to sanity, to maintain the action, had the effect of excluding the committee, and that the general words of section 2340 of the Code (now the .Second paragraph of Civ. Prac. Act, § 1377) did not enlarge the specific provisions of sections 1747 and 1748 of the Code (now Civ. Prac. Act, §§ 1137, 1138) which named the persons authorized to maintain the action to annul a voidable marriage. The authority to sue granted in the Civil Practice Act, section 1377, is not so limited in this case. Unless the committee may sue, no one may sue in representation of the incompetent.

The question was expressly reserved in Kaplan v. Kaplan (supra, p. 367) where it was held that an action for a separation might be maintained by an insane wife through her guardian ad litem. This language is used in the opinion: Ordinarily,"in the absence of some express limitation, a cause of action in favor of an infant or incompetent, arising either under the common law or conferred by statute, may be prosecuted by a guardian ad litem or special guardian. Neither infancy nor insanity deprives a person of the right to appeal to the courts for redress of wrongs or for vindication of asserted rights. It cannot he questioned that an infant may bring an action for a separation through a guardian ad litem. Unless from the nature of the cause of action or from other sections of the statute we can find an implication of a contrary legislative intent, then an incompetent spouse may also prosecute such an action through an appropriate officer appointed by the court. Without some basis for such an implication, we may not assume that the Legislature, though providing a remedy by action for the failure of a party to carry out matrimonial obligations, impliedly limited these remedies to a sane spouse. ’ ’

In his opinion Judge Lehm:an pointed out that the High Court of Justice in England in Mordaunt v. Mordaunt (L. R. 2 Prob. Div. 103) had held that because of its nature and results an action for divorce could not be maintained against an insane wife, but that that decision was reversed on appeal. (Mordaunt v. Moncrieffe, L. R. 2 Scotch & Divorce Appeals [House of Lords] 374.) There it was held that since Parliament by statute provided an action for absolute divorce without any limitation that it might not be maintained against a lunatic, the courts may not impose such a limitation by implication. Referring to this decision, Judge Lehman added: “ There, as we have said, the action was brought against an insane spouse. The same rule is applied where the action is brought in behalf of an insane spouse. (Baker v. Baker, L. R. 5 Prob. Div. 142, affd. 6 Prob. Div. 12.) The same question has never been decided by this Court. We are not called upon to decide it now.”

Here we not only have no limitation expressed by the Legislature but we have express and emphatic language to the effect that there shall be no such limitation.

In the Baker case cited by Judge Lehman, the court answered the argument that the wronged spouse had an inherent right to condone the offense, and that therefore a divorce suit could not be commenced without his active volition, by saying (p. 151): “ On the other hand it cannot be denied that, if reasons of expediency are to be regarded, great wrong might arise from holding that no proceedings for divorce can be maintained against the adulterous wife of a lunatic. She might be left in possession of property settled on her by her husband, which she and her paramour might enjoy to the exclusion of the lunatic. She might exercise powers of appointment in favour of the paramour or the children of her and his adultery, a spurious offspring might be foisted upon her husband and his family, by which the devolution of estates or titles might be diverted in favour of illegitimate objects. These evils would only be avoided by a dissolution of the marriage.”

The worst of these consequences is admittedly present in this case. But in addition it should be said that this court is now asked to permit the plaintiff and her paramour to enforce the obligations of the separation agreement to pay her a monthly allowance until death shall dissolve the marriage relationship and she shall have received her statutory share of his estate, unless her husband recovers his sanity and puts an end to such dirty business by an action for divorce.

Such consequences of a limitation upon the expressed intent of the Legislature preclude the application of the rule most often applied to criminal statutes, that general terms should ¡be limited where the literal application of the statute would lead to extreme or absurd results, and where the legislative purpose gathered from the whole act would be satisfied by a more limited interpretation. (Sorrells v. United States, 287 U. S. 435, 447, 448.) Here the limitation imposed by the court produces absurd consequences and flagrant injustice, and contradicts the specific language of the statute.

The court having concluded that there can be no suit for divorce, the resulting situation should constrain decision sustaining the sufficiency of the defense because the husband’s insanity has deprived him of the right to maintain an action for divorce. I have no doubt as to the sufficiency of the allegations to constitute a partial defense upon the ground that his obligation, defined and limited by the terms of the agreement, was conditioned upon his right to procure a divorce upon proof of the adultery which is admitted by the plaintiff. He made no promise to pay the plaintiff money which could not be terminated by procuring a divorce. His promise was conditioned upon the right to bring such a suit and terminate the obligation. If that right has been destroyed by his incompetency, then his promise to pay conditioned upon the right to terminate payments upon procuring a divorce becomes unenforcible insofar as all payments are concerned which would otherwise have been payable after his incompetency was adjudged and during its continuance.

The applicable principle is well stated in the Restatement of the Law of Contracts, volume 1, section 288: Where the assumed possibility of a desired object or effect to be attained by either party to a contract forms the basis on which both parties enter into it, and this object or effect is or surely will be frustrated, a promisor who is without fault in causing the frustration, and who is harmed thereby, is discharged from the duty of performing his promise unless a contrary intention appears.”

In this case the desired effect, clearly expressed in the agreement, was that the husband should pay a monthly allowance to the wife, but should be relieved of any obligation to make such payments if the wife committed acts of adultery and if he, in the exercise of his free will, chose to sue her for divorce and obtained a decree. This is the exact measure of the obligation as defined by the parties. But if it be true that through no fault of his own the husband has been deprived of his free choice to obtain a divorce and end the obligation, then the desired objective of the parties, as they defined it, is impossible of accomplishment. It was certainly contemplated by the agreement that the opportunity to obtain a divorce upon valid grounds should continue to exist. Its continued existence was the very foundation and condition upon which the promise was made to depend. Under these circumstances I have no doubt that the facts alleged, and admitted, constitute a defense under the authorities.

The rule in the well-known Coronation case, (Krell v. Henry, L. R. [1903] 2 K. B. 740), went far beyond the necessities of this case, for there, quoting Taylor v. Caldwell (3 B. & S. 826), Vaughan Williams, L. J., said (p. 748): “ That case at least makes it clear that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless, when the time for the fulfillment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be considered a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor. ’ ’ ’ The court then holds ‘£ that the English law applies the principle not only to cases where the performance of the contract becomes impossible by the cessation of existence of the thing which is the subject-matter of the contract, but also to cases where the event which renders the contract incapable of performance is the cessation or non-existence of an express condition or state ’ of things, going to the root of the contract, and essential to its performance. ’ ’

It was argued there that the rule was limited to conditions expressly mentioned in the contract. The court held that it was not so limited. But in the case under consideration the condition was expressly stated in the contract, and the defendants’ obligation was predicated upon the condition.

The principle which should control decision in the case at bar is illustrated most strikingly in cases arising upon bonds and recognizances, where the promise to pay is absolute in terms but is conditioned upon the happening of some event. This court long ago held that in such cases the impossibility of performance of the condition discharged the obligation to perform the promise of payment. (People v. Tubbs, 37 N. Y. 586. See, also, People v. Cook, 30 How. Pr. 110; People v. Cushney, 44 Barb. 118; People v. Bartlett, 3 Hill 570; People v. Manning, 8 Cow. 297; Carpenter v. Stevens, 12 Wend. 589.)

Accordingly, the court having held that the counterclaim is not maintainable, although upon the facts alleged and admitted the husband, if competent, could successfully maintain such an action, it follows that the husband’s promise to pay a monthly allowance cannot be enforced during his incompetency, which was adjudged on July 16, 1923. The facts alleged do not constitute a complete defense, since there would be a right to recover payments prior to that date unless barred by the Statute of Limitations, a question with which we are not concerned on this appeal. Under the Civil Practice Act, section 262, the defense was improperly pleaded as a complete defense, but neither court below relied upon this defect in pleading.

For the reasons stated, the order of the Appellate Division should be affirmed, and both questions certified answered in the affirmative without prejudice to defendant to move at Special Term to plead over and allege the matter set up in the Fourth Defense ” as a partial defense.

Lehman, Ch. J., Loughran, Conway and Desmond, JJ., concur with Lewis, J.; Thacher, J., dissents, in opinion in which Bippey, J., concurs.

Ordered accordingly.