author: Thachbk, J.

text:
    The People of the State of New York, Respondent, v. George H. Lewis, Appellant.
    Argued October 26, 1945;
    decided December 6, 1945.

      Herman S. Wolf man and Meyer Chazanov for appellant.
    I. Section U41-5.0 of the Administrative Code of the City of New York is illegal and void in that the city lacked the power and authority to enact same. (Scott v. Village of Saratoga Springs, 131 App. Div. 347, 199. N. Y. 178; Adler v. Deegan, 251 N. Y. 467; Matter of Holland v. Bankson, 290 N. Y. 267; Great Atlantic & Pacific Tea Co. v. City of New York, 173 Misc. 470; People v. Gorman, 133 Misc. 161; County Securities v. Seacord, 278 N. Y. 34.) II. Section TT41-5.0 is illegal and void in that it is inconsistent with and amends or supersedes a general State statute (New York State War Emergency Act; L. 1942, ch. 445, as amd.). (People v. Lyon, 99 N. Y. 210; People ex rel. Pierce v. Howe, 128 Misc. 31, 218 App. Div. 273; Penal Law, § 2; People v. Olyla, 183 Misc. 920; Village of Fleischmanns v. Hyman, 164 Misc. 175; People v. Sell, 310 Mich. 305.)

      Edward Lazansky, Ralph Stout and Sidney Schwartz for Butter & Egg Merchants Association, Inc., amicus curios, in support of appellant’s position.
    I. Local Law No. 35 is unconstitutional in that it invades a field of legislation fully occupied by the New York State War Emergency Act. (People v. Gorman, 133 Misc. 161; Matter of Kress & Co. v. Dept, of Health, 283 N. Y. 55; People v. County of Westchester, 282 N. Y. 224; Jewish Consumptives’ Relief Society v. Town of Woodbury, 230 App. Div. 228, 256 N. Y. 619; Village of Fleischmanns v. Hyman, 164 Misc. 175; People ex rel. Elkind v. Rosenblum, 184 Misc. 916; People ex rel. Kieley v. Lent, 166 App. Div. 550, 215 N. Y. 626; Matter of Polsky v. Walsh, 220 App. Div. 559.) H. Local Law No. 35 is unconstitutional, in that it is inconsistent with the New York State War Emergency Act. (Mayor v. Nicholls, 4 Hill 409; De Stasio v. Janssen Dairy Corp., 279 N. Y. 501; City of Buffalo v. Neubeck, 209 App. Div. 386.)

      George Trash and Samuel Marganroth for New York State Association of Retail Meat Dealers, Inc., amicus curiae, in support of appellant’s position.
    I. All legislative power remains in the State legislature, except insofar as it has been limited or surrendered. The City Home Rule Law does not surrender to cities the power to legislate in affairs of State concern, and matters of contract are exclusively affairs of State concern. As applied to the «fixing of ceiling prices, the State recognized and asserted its power by the enactment of the State War Emergency Act, pursuant to which ceiling prices are fixed, and by which penalties for violations are imposed. There is, accordingly, no power in the city to fix ceiling prices, and to fix penalties for the charging of higher ones. (Adler v. Deegan, 251 N. Y. 467; Tenement House Dept, v. Moeschen, 179 N. Y. 325; Gennis v. Milano, 135 Misc. 209; Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398.) II. The local law is, in several material respects, inconsistent with the State statute on the same subject, and, in effect, changes and supersedes the State statute. Even if the city had power to legislate in the field, it would have no power to enact such legislation. (Matter of Cooley v. Wilder, 234 App. Div. 256; People ex rel. Cosgriff v. Craig, 195 N. Y. 190; Adler v. Deegan, 251 N. Y. 491; People v. Olyla, 183 Misc. 920; Village of Fleischmanns v. Hyman, 164 Misc. 175; State v. Paille, 90 N. H. 347; Ex Parte McHenry, ;51 Tex. Crim. App. 564; Ex Parte Farley, 65 Tex. Crim. App. 405 Schroder v. City Council, 3 Brev. [S. C.] 533; State v. Dannenberg, 150 N. C. 799; Pipoly v. Benson, 20 Cal. 2d 366.)

      Ignatius M. Wilhinson, Corporation Counsel (Charles C. Weinstein, James Hall Prothero and Sylvan H. Elias of counsel), for respondent.
    I. The challenged law was validly" adopted. The municipal legislative b'ody had power to enact Local Law 35 of 1945. (New York City Charter, §§ 21, 27.) II. The City Home Rule Law intended municipal legislative bodies to possess power to enact laws such as Local Law No. 35 of 1945. j (City Home Rule Law, §§ 11, 30, 31; N. Y. Const., art. IX, §12; .
      City of New York v. Village of Lawrence, 250 N. Y. 429.) III. A local law, passed in accordance with authority granted by the State legislature, is, when its constitutionality is challenged, to be judged by the same standards as an act of the Legislature itself. (Matter of Mooney v. Cohen, 272 N. Y. 33; Matter of Atlas Television Co., 273 N. Y. 51; Matter of Brown Printing Co., 285 N. Y. 47; New Orleans Water Works v. New Orleans, 164 U. S. 471.) IV. The challenged local law is a valid exercise of the city’s police power. (Reinman v. City of Little Rock, 237 U. S. 171; Williams v. Mayor, 289 U. S. 36; Village of Carthage v. Frederick, 122 N. Y. 268; City of Rochester v. Macauley-Fien M. Co., 199 N. Y. 207; 3 McQuillin on Municipal Corporations [2d ed. rev.], § 942; People v. Sell, 310 Mich. 305; People ex rel. Durham R. Corp. v. La Fetra, 230 N. Y. 429; Matter of People [Tit. & Mtge. Guar. Co.], 264 N. Y. 69. V. The challenged law is not inconsistent with the New York State War Emergency Act, even though different penalties are provided, nor does it discriminate against persons engaged in business as wholesalers. The constitutionality of the law, as declared by the Court of Special Sessions, should be confirmed on this appeal. (People v. Mailman, 182 Misc. 870, 293 N. Y. 887; 3 McQuillin on Municipal Corporations [2 ed. rev.], § 942; Rogers v. Jones, 1 Wend. 237; Wood v. City of Brooklyn, 14 Barb. 425; City of Brooklyn v. Toynbee, 31 Barb. 282; City of New York v. Marco, 58 Misc. 225; People v. Steinhardt, 215 App. Div. 724, 245 N. Y. 553; Gilbert v. Minnesota, 254 U. S. 325; People v. Sampsell, 248 N. Y. 157; Matter of Oltarsh v. Levy, 266 N. Y. 523; Rosenthal v. New York, 197 N. Y. 394, 226 U. S. 260; People v. Lookstein, 78 Misc. 306; Matter of McKinney v. Hamilton, 282 N. Y. 393.)

      George Moncharsh, David London, Werner Usen, John D. Masterson, Isaac D. Sorgen and Samuel Mermin for Chester Bowles, Price Administrator, amicus curiae, in support of respondent’s position.
    I. The local law is a valid exercise of the police power of the home-rule City of New York in an emergency. (N. Y. Const., art. IX, § 12; City Home Rule Law, art. 2, § 11; New York City Charter, § 27; Levy Leasing Co. v. Siegel, 230 N. Y. 634, 258 U. S. 242; Marcus Brown

      Co. v. Feldman, 256 U. S. 170; Matter of People of New York [Tit. & Mtge. Guar. Co.], 264 N. Y. 69; Howard v. City of New York, 199 App. Div. 596, 236 N. Y. 91; People v. Moynihan, 121 Misc. 34; Hecht Co. v. Bowles, 321 U. S. 321; People ex rel. Doscher v. Sisson, 180 App. Div. 464, 222 N. Y. 387; State v. Holm, 139 Minn. 267; Tyson & Brother v. Banton, 273 U. S. 418; Nebbia v. New York, 291 U. S. 502; Village of Carthage v. Frederick, 122 N. Y. 268; City of Rochester v. Macauley-Fien M. Co., 199 N. Y. 207; People v. Mailman, 182 Misc. 870, 293 N. Y. 887; People v. Sell, 17 Mich. 193.) II. The local law is not invalidly discriminatory. (Yakus v. United States, 321 U. S. 414; Rosenthal v. New York, 197 N. Y. 394, 226 U. S. 260.) III. The local law is not rendered invalid by virtue of the provisions of State law or of the State War Council’s resolution. (Adler v. Deegan, 251 N. Y. 467; Matter of Kress & Co. v. Dept, of Health, 283 N. Y. 55; Rossberg v. State, 111 Md. 394; Village of Struthers v. Sokol, 108 Ohio St. 263; City of Owosso v. Michigan Central R. R., 183 Mich. 688; Rogers v. Jones, 1 Wend. 237; Wood v. City of Brooklyn, 14 Barb. 425; City of Brooklyn v. Toynbee, 31 Barb. 282; City of New York v. Marco, 58 Misc. 225; People v. Stewart, 47 N. Y. S. 2d 349; People v. Mailman, 293 N. Y. 887; People v. Sell, 17 Mich. 193; People v. Steinhardt, 215 App. Div. 724, 245 N. Y. 553; People v. Sampsell, 248 N. Y. 157; Matter of. Oltarsh v. Levy, 152 Misc. 674, 266 N. Y. 523; Dollar Co. v. Canadian C. & F. Co., 220 N. Y. 270.)
   Thachbk, J.

Pursuant to a certificate granted by the Chief Judge of this court, defendant appeals from a judgment of the Court of Special Sessions of the City of New York affirming a judgment of the City Magistrate’s Court convicting him of violating section TT41-5.0 of the Administrative Code of the City of New York as enacted by Local Law No. 35 of 1945 of that city.

By information defendant was charged with wilfully ana unlawfully ” selling and delivering a number of chickens for a price in excess of the ceiling price fixed by the Price Administrator, pursuant to the Emergency Price Control Act of 1942 (U. S. Code, tit. 50, Appendix, § 901 et seq.).

At the opening of the trial defendant’s counsel moved to dismiss the complaint “ on the ground that the law involved is unconstitutional.” Decision upon this motion was reserved and an invoice evidencing the salt, was received in evidence together with a formal stipulation of facts signed by the defendant reciting the transaction. Thereupon, both sides having rested, the motion to dismiss was renewed and denied. The defendant was found guilty “ as charged ” and sentenced “ to $50 or ten days, and an additional ten days ”. .

The Constitution of the State (art; IX, § 12), the City Home Eule Law (§ 11, subd. 2) and the New York City Charter (§27) have conferred upon the City Council broad legislative power to provide by local law for the preservation and promotion of the health, safety and general welfare of its inhabitants. If such laws have substantial relation to matters over which legislative power is vested in the local legislative body of the city and are not inconsistent with laws of the State, they are valid (Good Rumor Corp. v. City of New York, 290 N. Y. 312).

' The purpose of the local law is declared in the enactment as follows:

Be it enacted by the Council as follows:

“ Section 1. It is hereby declared that the proper allocation of commodities needed for the effective prosecution of the war, the defense of the United States and for civilian supply and the stabilization of commodity prices and the rents of housing and hotel accommodations are- necessary for the protection of the health, safety and general welfare of the inhabitants of the city of New York. The United States of America through congress has enacted legislation and acting through the office of price administration and other agencies has issued directives, orders, regulations and price schedules which are designed to effect such equitable distribution of commodities and stabilization of prices and rents. That the health, safety and welfare of the inhabitants of the city of New York is likely to be seriously affected by the establishment and continuance of black market practices. It is hereby declared to be the policy of this city in order to asstire fair dealing and the prevention and elimination of black markets to cooperate with the price, rationing and rent control programs of the government of the United States of America.”

Section 2 adds a new section — U41-5.0 — to the Administrative Code of the City of New York, which imposes penalties upon wholesalers, jobbers, manufacturers, distributors and middlemen for violations of the Federal Price Administrator’s regulations, including sales of commodities above ceiling prices fixed by his authority.

There can be no doubt that such a law is within the field of legislative power of the city as defined in the provisions of the Constitution, the City Home Eule Law and the New York City Charter unless it is inconsistent with the laws of the State. The only suggestions of inconsistency are predicated upon the imposition of penalties, for violations of the Price Administrator’s regulations, in excess of those imposed by the New York State War Emergency Act, section 102, and the assertion disputed by the city that the local law punishes violations and infractions which are not willful although the State law does not.

The maximum penalty imposed by the State statute — which we held valid in People v. Mailman (293 N. Y. 887) — is a $25 fine and five days in jail, whereas under the local law such violations may be punished by a larger fine, longer imprisonment and other penalties such as forfeiture of licenses, if any, issued by the city. But this' difference in penalty does not invalidate the local'law (Rogers v. Jones, 1 Wend. 237, 261; Wood v. City of Brooklyn, 14 Barb. 425, 429; City of Brooklyn v. Toynbee, 31 Barb. 282, 284). For authorities from other States, see 3 McQuillin on Municipal Corporations (2d ed. rev.), section 924.

It is true that the local law is not in terms limited to willful violations, but the defendant was convicted of a willful. violation and his written stipulation forecloses contention that he unwittingly sold at prices in excess of ceiling prices. . Consequently he is in no position to question the constitutionality of the local law on this ground. But the omission of the word wilfully ” is of no legal significance and does not render the local law invalid. See People v. Sampsell (248 N. Y. 157) where we dealt with a similar difference between a State and a local law..

The differences between the State law and the local law are not of such a character as to render one inconsistent with the other. The local law supplements the State law by providing heavier penalties for black-market transactions in New York City of the gravest consequence to the property, safety and health of its crowded population, dependent upon thousands of small storekeepers from whom the daily necessities of life must be purchased. The situation justified stern enforcement to avoid many evils and consequent hardship, or at least the •local Legislature could so decide. The local law prohibits nothing that the State law permits, as was the case in Matter of Kress & Co. v. Depart. of Health (283 N. Y. 53, 61); cf. People ex rel. Oltarsh v. Levy (266 N. Y. 523). Nor can any purpose be found in the State law to occupy the entire field to the exclusion of local laws of the character expressly authorized by the Constitution and the City Home Rule Law. Laws dealing with the same subject matter are not necessarily incompatible because not identical. Indeed in this case they are entirely consistent, and conclusion follows that the local law is valid.

The judgment should be affirmed.

Loughran, Ch. J., Lewis, Conway, Desmond and Dye, JJ.> concur; Medalie, J., taking no part. ■

Judgment affirmed.


source: Caselaw Access Project

author: Thacheb, J. Desmond, J.:

license: Public Domain

text:
    Charles Steitz et al., Appellants, v. City of Beacon, Respondent.
    Argued May 24, 1945;
    decided December 7, 1945.

      Normington Schofield for appellants.
    I. The complaint alleges injury due to affirmative negligent acts of the city. (Bloom v. Jewish Board of Guardians, 286 N. Y. 349; Paige v. State of New York, 269 N. Y. 352.) II. The complaint alleges injury due to the city neglecting wholly a duty specifically enjoined upon it. (Springfield Fire Insurance Co. v. Village of Keeseville, 148 N. Y. 46.) III'. The municipality is divested of governmental immunity. (Paige v. State of New York, 269 N. Y. 352; Matter of Evans v. Berry, 262 N. Y. 61; Bloom v. Jewish Board of Guardians, 286 N. Y. 349; Holmes v. County of Erie, 266 App. Div. 220, 266 App. Div. 909, 291 N. Y. 798.)

      Vincent D. Stearns for respondent.
    There is no allegation in the complaint which sets forth a tort by an officer or employee of the city of Beacon which was the proximate cause of, or a contributing factor to, the burning of appellants’ property and the judgment of the Appellate Division should be affirmed.
   Thacheb, J.

The complaint in this action was dismissed at Special Term for failure to state facts sufficient to constitute a cause of action. The Appellate Division affirmed unanimously and we granted leave to appeal.

The action is brought to recover damages suffered as a result of a fire which occurred in the city of Beacon on December 26, 1942. Under section 24 of that city’s charter (L. 1913, ch. 539, as amd. by L. 1920, ch. 171, § 6) the city “ may construct and operate a system of waterworks ”, and the same section provides that it shall maintain fire, police, school and poor departments.” Pursuant to these powers the city caused a system of water works and mains to be constructed to supply water for private and public use, including fire protection. As part of this system a pressure and flow regulating valve was constructed on a water line and water main located near the plaintiffs’ property upon which there were certain buildings used in conducting the, business of raising chickens.

• It is alleged that the fire broke out on these premises and that plaintiffs’ property was destroyed because of the carelessness and negligence of the city in failing to create and maintain a fire department, including fire equipment and protection for the benefit of plaintiffs’ property and the properties of others located nearby. It is also alleged that the city negligently failed to keep in repair the pressure and flow regulating valve located near the plaintiffs’ property and that it negligently operated a certain manually operated valve, and that by reason of such negligence an insufficient quantity, of water was provided to combat effectively the fire in question. Plaintiffs'’ freedom from contributory negligence and damages in the sum of $27,900 are also alleged and the plaintiffs demand judgment for that amount.

The waiver of sovereign immunity by section 8 (formerly § 12-a) of the Court of Claims Act has rendered the defendant municipality liable, equally with individuals and private corporations, for the wrongs of its officers and employees. In each case, however, liability must be “ determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations Accordingly the city is governed and controlled by the rules of legal liability applicable to an individual sued for fire damage under the circumstances alleged in the complaint. The question is whether the facts alleged would be sufficient to constitute a cause of action against an individual under the same duties as those imposed "upon the city solely because of failure to protect property from destruction by fire which was started by another. There is no such liability known to the law unless a duty , to the plaintiff to quench the fire or indemnify the loss has been assumed by agreement or imposed by statute. There was no agreement in this case to put out the fire or make good the loss, and so liability is predicated solely upon the above-quoted provisions of the city’s charter defining its powers of' government. Quite obviously these provisions were not in terms designed to protect the personal interest of any individual and clearly were designed to secure the benefits of well ordered municipal, government enjoyed by all as members of the community. There was indeed a public duty to maintain a fire department, but that was all, and there was no suggestion that for any omission in keeping hydrants, valves or pipes in repair the people of the city could recover fire damages to their property.

An intention to impose upon the city the crushing burden of -such an obligation should not be imputed to the Legislature in the absence of language clearly designed to have that effect. Language similar to that found in the Charter of the City of Beacon may be found in many municipal charters. (For example, see New York City Charter [1938], § 481; Rochester City Charter [L. 1907, ch. 755], § 317, as amd. by L. 1921, ch. 292, § 3; Lackawanna City Charter [L. 1939, ch. 785], § 213; Hudson City Charter [L. 1921, ch. 669], § 262; Batavia City Charter [L. 1921, ch. 678], § .90; Second Class Cities Law, § 131. And see General Municipal Law, § 402.) Furthermore, many of these charters antedate the enactment of section 12-a (L. 1929, ch. 467), the predecessor of section 8, of the Court of Claims Act, as does the charter in this case. As was said in Moch Co. v. Rensselaer Water Co. (247 N. Y. 160, 166), If the plaintiff is to prevail, one who negligently omits to supply sufficient pressure to extinguish a fire started by another, assumes an obligation to pay the ensuing damage, though the whole city is laid low. A promisor will not be deemed to have had in mind the assumption of a risk so overwhelming for any trivial reward.” A fortiori the Legislature should not be deemed to have imposed such a risk when its language connotes nothing more than the creation of departments of municipal government, the grant of essential powers of government and directions as to their exercise.

Such enactments do not import intention to protect the interests of any individual except as they secure to all members of the community the enjoyment of rights and privileges to which they are entitled only as members of the public. Neglect in the performance of such requirements creates no civil liability to individuals (Restatement of Torts, § 288; Moch Co. v. Rensselaer Water Co., supra; Taylor v. Lake Shore & Mich. S. Ry., 45 Mich. 74; Frontier Steam Laundry Co. v. Connolly, 72 Neb. 767; cf. City of Rochester v. Campbell et al., 123 N. Y. 405, and Troeger v. Prudential Insurance Co. of America, 154 Misc. 537, which cites Restatement of Torts, § 288). The rule is well stated in Hayes v. Michigan Central R. R. Co. (111 U. S. 228, 240).

Our decision in Foley v. State of New York (294 N. Y. 275) was not governed by this rule because the duty neglected in that case was imposed for the sole purpose of protecting the interests of the plaintiffs and others similarly situated against the particular hazard from which the plaintiffs suffered. In that case the Vehicle and Traffic Law imposed upon the State the duty to maintain traffic control lights upon State highways and a majority of the court held that we could not say as matter of law that the plaintiffs’ injuries were not proximately caused by the negligence of agents of the State in failing to replace a burned out traffic light bulb. The sole purpose of requiring the State to maintain such lights was to protect individuals using the highways from collision damage. The violation of such a duty, resulting in damage, gives rise to an action in tort, if, but only if, the intent of the statutory enactment is to protect an individual against an invasion of a property or personal interest (Amberg v. Kinley, 214 N. Y. 531; Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287, 306; Restatement of Torts, § 286).

The case at bar is governed by our decision in the Moch case (supra). There the defendant water company was under a far more specific statutory duty than any to be found in the Charter of the City of Beacon. It was a public service corporation subject to the provisions of the Transportation Corporations Law (L. 1909, ch. 219, § 83), which imposed upon it the duty to furnish water at reasonable rates upon demand by the city through hydrants or in public buildings for the extinguishment of fires and for sanitary and other public purposes In accordance with this statute the water company contracted with the city to deliver water at the fire hydrants. It was alleged that while the defendant was under this duty a building caught fire the flames from which spread to the plaintiff’s warehouse, -destroying this warehouse and its contents. The defendant, according to the complaint, was promptly notified of the fire but neglected after such notice to furnish sufficient water under • adequate pressure to extinguish the fire before it reached plaintiff’s warehouse, although equipped to do so and thus to prevent the spread of the fire and the destruction of plaintiff’s property. Judgment was demanded for the resulting damage. The action for damages was claimed to be maintainable as an action for breach of contract within Lawrence v. Fox (20 N. Y. 268), as a cause of action for a common-law tort within MacPherson v. Buick Motor Co. (217 N. Y. 382), and as a cause of action for the breach of a statutory duty predicated upon the provisions of the Transportation Corporations Law. . It was held that the action could not be maintained for a tort at common law or for a breach of statutory duty because the duty was owing to the city and not to its inhabitants and because the failure to furnish an adequate supply of water was at most the denial of a benefit and was not the commission of a wrong.

The Moch case is controlling here because it has judicially determined that a corporation under a positive statutory duty to furnish water for the extinguishment of fires is not rendered liable for damages caused by a fire started by another because, of a breach of this statutory duty. v

Accordingly, the judgments of the courts below were correct both upon principle and authority and there is no statute justifying the imposition of liability upon the city in this case.

The judgment should be affirmed, with costs.

Desmond, J.:

(dissenting). The courts below dismissed this complaint on the ground that it fails to state facts sufficient to constitute a cause of action. According to the complaint, a fire broke out in plaintiff’s building in the city of Beacon, New York, on the night of December 26, 1942. In the course of the fire the building burned down. It is alleged by plaintiff that the destruction of his property was due to the neglect of defendant City of Beacon in that, according to the complaint, the city failed to keep in repair a pressure and flow regulating valve in the city’s water lines and negligently allowed that valve to be and remain in a state of disrepair. It is further alleged that the city was at fault in its operation of another or hand valve in the water line, also.. By reason of such carelessness of the city, alleges plaintiff, there was no water, or at least not sufficient water, available for the effective fighting of the fire. Particularly to be noted is the allegation in the complaint that the city, under its charter (see L. 1920, ch. 171, § 24) was required by law to create and maintain a fire department. That same charter authorizes the city to construct and maintain a water system. Special Term, in ordering the complaint dismissed, relied on Hughes v. State of New York (252 App. Div. 263). In the Hughes case the court, among other things, held that, since the extinguishment of fires is a “ governmental ” function of a city, no liability can be predicated on such a corporation’s failure^to furnish adequate fire protection. There are innumerable cases throughout the United States, some of them in this State, so holding, but they all rest in whole or in part on the theory that, in furnishing protection against fire and in extinguishing fires, a city acts in its “ governmental ” and not in its “ proprietary ” capacity. That traditional theory of immunity from liability for faulty performance of “governmental ” activities, including fire protection is, however, only an aspect of the larger rule of the common law that a sovereign could not be held to respond in damages (see Workman v. New York City, Mayor &c., 179 U. S. 552, 556, 566; Dunstan v. City of New York, 91 App. Div. 355, 359). “ All these cases but expound the theory of sovereign attribute ” (Workman v. New York City, Mayor &c., supra, at p 572). The State of New York, however, has, by section 8 of the Court of Claims Act, waived that immunity from liability and action and has assumed such liability, and consented to have the same determined, “ in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations ”. Pointing out that no city of this State “ has any independent sovereignty ” and that the immunity formerly enjoyed by cities “ was nothing more than an extension of the exemption from liability which the State possessed ”, we have held that the City of New York would be liable for negligence in connection with the conduct of its Police Department, even without General Municipal Law, section 50-b (Bernardine v. City of New York, 294 N. Y. 361, 365). The common-law theory of nonliability of municipal corporations in connection with their police departments was precisely the same as with respect to their fire departments. We conclude that the cities of this State have, as a result of the State’s waiver of its immunity, become liable at least for negligent maintenance of such facilities and appliances for fire protection as they possess. We limit ourselves herein to saying that an actionable wrong is stated in this complaint insofar as it alleges that the city, having installed certain hydrants, valves, etc., negligently allowed them to fall into disrepair, and disuse. We need not now decide what, if any, liability there would be in a case where the alleged fault of the city was not the negligent upkeep of its fire-fighting plant, but a failure to provide adequate fire-fighting facilities or to use them efficiently (see Mills et al. v. City of Brooklyn, 32 N. Y. 489, 495; Urquhart v. City of Ogdensburg, 91 N. Y. 67, 71). Our upholding this complaint would go only so far as to say that the statements therein that the city failed to keep its fire equipment in good order, with resulting damage to the property of the citizen, allege an actionable wrong. Such damage need not be by physical impingement, but'may be such as results from a failure to keep protective devices working (Foley v. State of New York, 294 N. Y. 275).

This complaint discloses another ground on which liability might be predicated. As above pointed out, an applicable State statute commands defendant City of Beacon to maintain a fire department. Even before the State of New York relinquished its sovereign immunity, the cities of this State were held liable for their defaults in connection with such State-mandated services. That obligation follows from the contract with the State, implied from the acceptance of the city’s charter, that the city will discharge the duties imposed by the charter (see Storrs v. The City of Utica, 17 N. Y. 104, 109; Hover v. Barkhoof, 44 N. Y. 113, 121; Maxmilian v. Mayor, 62 N. Y. 160, 164; Missano v. The Mayor, 160 N. Y. 123,129; O’Donnell v. City of Syracuse, 184 N. Y. 1, 10; Herman v. Board of Education, 234 N. Y. 196, 201; Urquhart v. City of Ogdensburg, supra). That idea of an implied contract is well stated at 43 Corpus Juris, Municipal Corporations, § 1703, page 927, as follows: u In many jurisdictians the rule is laid down that a municipal corporation, when charged in its corporate character with the performance of a municipal function, the duty being absolute or imperative and not merely such as under a grant of authority is intrusted to the judgment and discretion of the municipal authorities, is civilly liable for injuries resulting from misfeasance or nonfeasance with respect to such duty; and this rule has been especially applied in cases relating to streets, and to sewers and drains.” As the above quotation from Corpus Juris points out, most of the cases enforcing this rule involve streets and sewers and follow Conrad v. The Trustees of the Village of Utica, 16 N. Y. 158 (and Weet v. Village of Brockport which in effect is incorporated into this court’s opinion in the Conrad case — see reporter’s note at p. 161 of 16 N. Y.). While we find no reported cases containing like holdings as to a city’s negligence in connection with maintaining its fire-extinguishing paraphernalia, we see no reason against such a holding. It follows that this complaint should not have been dismissed for insufficiency.

It is not presently important that the failure was of a valve or hydrant in a water line, rather than of the fire-fighting machinery itself. The charter’s mandate to the city to have and operate a fire department necessarily includes the furnishing of water therefor. •

Although liability- for failure to supply fire protection was denied in both Fire Insurance Co. v. Village of Keeseville (148 N. Y. 46) and Moch Co. v. Rensselaer Water Co. (247 N. Y. 160), neither case is a compelling authority for affirmance here. Both those cases were, of course, decided before the State gave up its sovereign immunity. Furthermore, the Keeseville and Moch opinions carefully pointed out that neither the Village of Keeseville nor the City of Rensselaer, was under any such legal duty as has been imposed on this defendant by its legislative charter to supply its inhabitants with protection against fire.

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

Lewis, Conway and Dye, JJ., concur with Thachee, J.; Desmond, J., dissents in opinion in which Loughran, Ck. J., concurs; Lehman, Ch. J., deceased.

Judgment affirmed.


author: Medalie, J.

text:
    The People of the State of New York, Respondent, v. Abraham B. Goldstein, Appellant.
    Argued October 8, 1945;
    decided January 17, 1946.

      Rudolph Stand for appellant.
    1. The judgment should be reversed because of the improper admission of evidence of extraneous transactions not shown to be criminal in character and not connected with the offense for which defendant was on trial. Slips listing bets on races run prior to the day of defendant’s arrest and written by him, which were received in evidence against defendant, were wholly irrelevant and disconnected with the offense charged (People v. Molineux, 168 N. Y. 264; People v. Richardson, 222 N. Y. 103; People v. Shea, 147 N. Y. 78; People v. Grutz, 212. N. Y. 72; People v. Crapo, 76 N. Y. 288; Coleman v. People, 55 N. Y. 81; People v. Sharp, 107 N. Y. 427; People v. Kelly, 45 N. Y. S. 2d 685; People v. Ebel, 98 App. Div. 270). II. The question of substantial doubt as to the competency of evidence relating to the slips of prior days’ bets should have been resolved in defendant’s favor and the evidence should have been excluded (People v. Grant, 174 App. Div. 608; People v. Molineux, 168 N. Y. 264; Shaffner v. Commonwealth, 72 Pa. 63). III. The evidence was not sufficient to warrant the finding of guilt beyond a reasonable doubt (People v. Collins, 265 App. Div. 756; People v. Carpenito, 292 N. Y. 498; People v. Richardson, 287 N. Y. 563; People v. Downs, 123 N. Y. 558; People v. Stedeker, 175 N. Y. 57; People ex rel. Sterling v. Sheriff of Nassau County, 60 Misc. 326; People ex rel. Collins v. McLaughlin, 128 App. Div. 599; People v. Bright, 203 N. Y. 73).

      Frank S. Hogan, District Attorney (Milton H. Spiero and Whitman Knapp of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. The facts, taken in conjunction with the notations of the defendant’s previous bets supported the trial court’s determination that defendant was engaged in book-making (People v. Carpenito, 292 N. Y. 498; People v. Danzilo, 276 N. Y. 480; People v. McGuire, 275 N. Y. 521). II. The admission in evidence of defendant’s notations of bets on horse races that had been run prior to his arrest was proper (People v. Carpenito, 292 N. Y. 498; Barnman v. Erickson, 288 N. Y. 133; People v. McGuire, 275 N. Y. 521; Watts v. Malatesta, 262 N. Y. 80; People ex rel. Lichtenstein v. Langan, 196 N. Y. 260; People v. Solomon, 174 App. Div. 144, 221 N. Y. 502; People v. Hart, 46 Cal. App. 2d 230; People v. Schwartz, 14 Cal. App. 9).
   Medalie, J.

This conviction of hook-making is based on the testimony of the police officer who observed defendant near a busy Manhattan street corner in the early afternoon. Pour men in turn approached defendant during a forty-minute period. Each of them had a short conversation with defendant and each then gave him money, the first two after consulting scratch sheets which list the horses entered in the day’s races. As a fourth man approached defendant, the police officer came near and heard the man say $2 to win on Yawl,” a horse scheduled to run that day. The officer then followed defendant to a nearby clubroom. There in a desk at which the defendant was seated the officer found an envelope containing a large number of slips of paper. Defendant admitted to the officer that the writings were his and represented bets on horses. The officer, as an expert on book-making, testified that the slips showed the initials of players and amounts wagered. An envelope with similar slips was found in a fuse box in the same room. The bets listed on the slips were for races to be run prior to the day when all this occurred and when defendant was arrested. Defendant denied to the officer that he was a book-maker. He said, “ I’m just doing a favor for the real bookmaker. I help him out by writing the slips. I’m only a horse player myself.” At the trial, defendant denied the charge of book-making and said that the slips in his handwriting represented bets in which he was only a partner of other players.

What is now Penal Law, section 986, was amended in 1910 (L. 1910, ch. 488) so that by statutory definition the offense includes the recording or registering of bets “ with, or without writing. ’ ’ It includes too receiving money ‘ ‘ bet or wagered, by or for any other person.” Aiding or assisting any of these acts is also declared a misdemeanor. The statute has been taken to apply not to those who place their own bets with bookmakers, but to the professional operator who makes a business of betting against the public’s guesses and so has earned the name book-maker as he records his numerous commitments. This court has not considered evidence sufficient where there is nothing more than the approach on the sidewalk of a few people to the defendant, the examination of a scratch sheet and the passing of money. The circumstances are not deemed sufficient to remove the case from uncertainty as to whether defendant’s status is that of a mere player or of a professional book-maker (People v. Carpenito, 292 N. Y. 498; People v. Marra, 289 N. Y. 703; People v. Soshtain, 288 N. Y. 658; People v. Richardson, 287 N. Y. 563). In these cases there was no evidence as to what was said and no evidence of a writing or recording. But where there has been proof of writings in addition to the unheard street corner conversations, examinations of scratch sheets and passing of money, the convictions have been sustained (People v. Panagoulokos, 292 N. Y. 545; People v. Picone, 292 N. Y. 546). In People v. Sloane (230 N. Y. 529), where as appears from the record the men who approached defendant told him to place bets of specified amounts, the evidence was deemed sufficient and the conviction was affirmed. So in this case, the officer heard the instructions to place $2 on a horse to be run that day. Defendant’s admission that he helped the book-maker by writing his slips though not in terms applicable to the day of his arrest, is sufficient to prove he was engaged in assisting acts of bookmaking. ,

In addition, evidence of the slips in defendant’s handwriting recording bets for races on previous days was potent proof that defendant was practicing the calling of book-making and was not merely a player or one sharing risks with other players. The admission of these slips in evidence as well as all proof concerning them was objected to by defendant as proof oC other crimes .than the offense for which he was being tried. As a general rule evidence that defendant committed other or similar offenses is not admissible to prove his guilt of the crime for which he is being tried. One may not be convicted of one crime on proof that he probably is guilty because he committed another crime (People v. Molineux, 168 N. Y. 264; People v. Dolan, 186 N. Y. 4). But the rule is subject to many reasonable exceptions (People v. Buchalter, 289 N. Y. 181; People v. Thau, 219 N. Y. 39, 42; People v. Marrin, 205 N. Y. 275; People v. Molineux, 168 N. Y. 264; People v. Peckens, 153 N. Y. 576, 594; People v. Shea, 147 N. Y. 78, 98).

This court has consistently held that evidence which is material and relevant to the issue is admissible even though it connects defendant with other crimes. In People v. Peahens (supra), Martin, J., said: “ It is well settled by the decisions of this court that while evidence of the commission of one crime is not admissible to establish a party’s guilt of another, yet, that is not inadmissible because it tends to prove another crime if it is otherwise material and relevant.”

In People v. Thau (supra), Bartlett, Ch. J., quoted with approval from State v. Adams (20 Kan. 311, 319), where Brewer, J., said: “ * * * A party cannot by multiplying his crimes diminish the volume of competent testimony against him. ’ ’

The slips recording bets were material and relevant as showing the character of defendant’s activity as he conducted himself on the street corner, consulting racing scratch sheets with two people and receiving money from four persons. A possible view of the evidence including the proof of the $2 bet on Yawl might still leave a doubt in the mind of the trier of the fact that the defendant was operating as a book-maker. There was an issue here whether defendant was a professional gambler playing against the public or a mere player or friendly participant with others. To determine that issue defendant’s recent activities are proved by records written by him showing that he bets on horses against the public, or at least against those who trust him. Without such proof the case may be left in the uncertainties of the only circumstantial evidence available in many of these cases. Proof of the recording of yesterday’s bets in book-maker style is effective in dissipating anxiety that an innocent player is being convicted. Proof that defendant recently made written records of bets on horses establishes his continuous activity in this prohibited occupation down to and through the events that caused his arrest. By this proof his conversations with the four men and the taking of money from them are seen in a clear light revealing the activities of a professional gambler. Without this proof of his bet-recording activities defendant may pose as a guiltless person when the available proof indicates the contrary. The rule of evidence invoked here reasonably and fairly permits an effective answer to an unfounded pretension of innocence.

The judgment should be affirmed.

Lotjghran, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Judgment affirmed.


author: Lewis, J.

text:
    The People of the State of New York, Appellant, v. Viola Gage, Respondent. The People of the State of New York, Appellant, v. Arthur Unger, Respondent. The People of the State of New York, Appellant, v. Guy Durey et al., as Executors of Cyrus Durey, Deceased, Respondents. The People of the State of New York, Appellant, v. Katharine G. Folmsbee et al., Respondents.
    Argued October 10, 1945;
    decided January 17, 1946.

      Nathaniel L. Goldstein, Attorney-General (David Belkin, Orrin G. Judd, Warren E. Gilman and Saul A. Shames of counsel), for appellant.
    I. The deed to the State and other documentary evidence plainly shows that the title to the land in dispute passed to the State in 1918. II. The reservation in the deed to the State of the lands lying under the waters of Bast Canada and Green Lakes within lot sixty, refers to the land lying within the shore lines of the respective lakes at low water as depicted on the map in accordance with which the conveyance was made. The power company’s right to flood the lands adjacent to these waters did not extend the bounds of those lakes so as to make the flooded land lands under the waters of said lakes. The reservation of land under waters meant the land below the low water mark or shore lines of the lakes as indicated on the map referred to in the deed. (Wheeler v. Spinola, 54 N. Y. 377; Smith v. Bartlett, 180 N. Y. 360; Shively v. Bowlby, 152 U. S. 1; Stewart v. Turney, 237 N. Y. 117; Ransom v. Shaeffer, 153 Misc. 199, 243 App. Div. 858; White v. Knickerbocker Ice Co., 254 N. Y. 152; Calkins v. Hart, 219 N. Y. 145; Gouverneur v. National Ice Co., 134 N. Y. 355; City of Geneva v. Henson, 195 N. Y. 447; Fulton Light, Heat & Power Co.,v. State of New York, 200 N. Y. 400; Matter of Brookfield, 176 N. Y. 138; Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Elco Shoe Manufacturers v. Sisk, 260 N. Y. 100, 103; N. Y. Life Ins. & Trust Co. v. Hoyt, 161 N. Y. 1.) III. The reservation to the power company of the right to flood the lands adjacent to the waters is additional proof of the plaintiffs’ ownership to the disputed land. (Bennett v. Town of Kent, 241 N. Y. 385.)

      Alfred D. Dennison and Gideon G. W. Green for respondents.
    I. The surrounding circumstances establish that it was not, in December, 1918, the intent of the grantor to convey or the intent of the grantee to take the area in question. (Simon v. Etgen, 213 N. Y. 589; Gillet v. Bank of America, 160 N. Y. 549; Moran v. Standard Oil Co., 211 N. Y. 187; Lamb v. Norcross Brothers Co., 208 N. Y. 427; Cordita v. Guggenheim, 274 N. Y. 51; Mullen v. Washburn, 224 N. Y. 413; Nicoll v. Sands, 131 N. Y. 19; Carthage T. P. Mills v. Village of Carthage, 200 N. Y. 1; Sanford v. Brown Brothers Co., 208 N. Y. 90.) II. All the defendants hold title by conveyances from the defendant Viola Gage who was in 1918 purchaser under contract of the whole area and in open and notorious possession thereof with structures thereon. Her title was superior to plaintiff who was put upon notice. (Phelan v. Brady, 119 N. Y. 587; Italian Savings Bank v. LeGrange, 169 App. Div. 120.) III. There is no presumption that title to land adjoining East Canada and Green Lakes goes to low water mark, because they are small, nonnavigable, inland, fresh-water lakes. . Even if there were such a presumption, it may be rebutted by evidence showing a contrary intent. (Smith v. City of Rochester, 92 N. Y. 463; Gouverneur v. National Ice Co., 134 N. Y. 355; Land & Lake Association v. Conklin, 182 App. Div. 546; Wilcox v. Bread, 92 Hun 9; Ledyard v. Ten Eyck, 36 Barb. 102; Stewart v. Turney, 237 N. Y. 117.) IV. The flowage rights of the power company in nowise affect the issues ip this case.
   Lewis, J.

In these four actions in ejectment the People of the State of New York seek an adjudication of ownership and the right to immediate possession of four parcels of contiguous land in Fulton County, the title to which is claimed by the several defendants. At Trial Term, where the four actions were tried together without consolidation, a jury returned a verdict for each defendant. A judgment of dismissal entered upon the jury’s verdict in each case has been unanimously affirmed at the Appellate Division. The appeal by the plaintiff in each case is by our leave.

The land in controversy is located between the easterly shore line of East Canada Lake and the westerly shore line of Green Lake, south of the channel which connects those two bodies of water. Title is claimed by the State under a deed dated December 10, 1918, from Durey Land & Lumber Company — to which reference will be made as the 1918 deed. Upon the trial the State took the position, as it does upon this appeal, that the language employed to describe lands excepted from the 1918 deed was not ambiguous; that when read in its context the exception established as a matter of law that the land in suit was not land under the Avaters of East Canada Lake and Green Lake lying within lot sixty and, accordingly, that there was no issue of fact for the jury. In support of the State’s position the Attorney-General argued that the language employed in the 1918 deed to identify the excepted land should be construed, as a matter of law, to exclude from that conveyance only land under the waters of East Canada Lake and Green Lake beloAv the shore lines as they are indicated on one of the maps to which there was specific reference in the deed. The Trial Justice, having concluded that the language of such exception was ambiguous, overruled appropriate objections and denied motions by the Attorney-General, which in effect challenged the legality of that conclusion, and submitted to the jury as an issue of fact the question whether the subject land Avas under the waters of East Canada Lake and Green Lake and Avas thus excepted from the 1918 conveyance to the State.

As the case comes to us our chief problem is to determine whether in the fourth exception in the 1918 deed there was ambiguity which served as a legal basis for submitting to the jury the question whether the subject land was land under the waters of East Canada Lake and Green Lake.

The relevant provisions of the 1918 deed to the State are as follows: ‘ All that certain piece or parcel of land situate in the town of Caroga, County of Fulton and State of New York, being a part of lot sixty of the Glen, Bleecker & Lansing Patent, and being bounded and described as follows:

“ Excepting out of the lands above described the following parcels:

“ 4. The land under the waters of East Canada and Green Lakes lying within said lot Sixty, and containing 141.56 acres of land.

“ Subject to the perpetual right, privilege, and easement of the East Creek Electric Light and Power Company to construct, maintain and operate, and from time to time as may be necessary to rebuild a dam across the outlet of Lily Lake, so-called, and to raise thereby the waters in East Canada Lake, West Canada Lake, Lily Lake and Green Lake, and the inlets and outlets thereof, with the perpetual right, to flood by means of said dam the lands, lakes and ponds connected with the said Lily Lake, to the height specified in certain agreements * * * granting to said Durey Land and Lumber Company the right to raise the waters of said lakes * * * and to store and maintain the waters thereof at said level as the Power Company may from time to time desire, thereby flooding the lands of the Lumber Company; and to draw down the waters thereof from time to time as the Power Company may desire * * *.

“ The foregoing descriptions of lands and parcels excepted therefrom are made in accordance with survey made for the State of New York by J. B. andB. H. Koetteritz and maps thereof dated August, 1918 on file in the office of the Conservation Commission and numbered 981. 1095 and 1096.” (Emphasis supplied.)

After the conveyance to the State effected by the 1918 deed, one Cyrus Durey delivered to Viola Gage a deed dated December 24,1932, which purported to convey to the grantee premises which include the land here in litigation, viz., that part of lot sixty “Bounded and described as follows, viz.: On the North by Canada Lake and Green Lake; on the East by lands of the State of New York; on the South by lands of Virtus Folmsbee and on the West by Canada Lake; it being the intention of this conveyance to convey all of the land now owned by first party lying East and West of the highway running from Green Lake to Wheelerville, and between the lands of Virtus Folmsbee on the South and the shores of Canada and Green Lake and the South Bank of the Channel connecting said lakes, on the North.”

Our examination of the record upon which rest claims by the State and the several defendants to land within the description last quoted above has led us to conclude that the fee title to that land passed to the State under the 1918 deed subject only to the right specifically reserved therein to East Creek Electric Light and Power Company to raise the level of various lakes and streams including East Canada Lake and Green Lake. We do not regard as ambiguous the language chosen to describe the lands conveyed to the State by the 1918 deed.

In reaching that conclusion we have been influenced by that recital in the deed which excepts from the conveyance to the State “ The land under the waters of East Canada and Green Lakes lying within said lot Sixty, and containing 141.56 acres of land.” The acreage of land mentioned in that exception is the total area comprising that portion of East Canada Lake lying within lot sixty, viz., 94.80 acres and the area of Green'Lake-(all of which lies within lot sixty) viz., 46.76 acres. Those areas and the acreage of each are shown on a map, numbered “ 1096 ”, which is one of three maps mentioned in the 1918 deed as descriptive of “ lands and parcels excepted ” from that conveyance. It is thus seen that the exception from the conveyance contemplated by the 1918 deed was “ 141.56 acres of land ” which lie “ within said lot Sixty ” and are described as being “ under the waters of East Canada and Green Lakes.” Additionally, in an apparent effort to assure certainty as to the location and limits of the land excepted, there was recorded in the deed the fact that “The foregoing descriptions of lands and parcels excepted therefrom are made in accordance with survey made for the State of New York by J. B. and B. H. Koetteritz, and maps thereof dated August, 1918 on file in the office of the Conservation Commission and numbered 981, 1095 and 1096.” (Italics supplied.)

No evidence was introduced by the defendants- to establish that the map numbered 1096,” mentioned in the 1918 deed, Avas inaccurate or that the areas and boundaries of East Canada Lake and Green Lake, as they appear on that map, were erroneous. Indeed, there is undisputed testimony by a forest engineer and land surveyor'employed by the State Conservation Commission that an unbroken line appearing on map No. 1096 defined the boundaries of East Canada Lake and Green Lake and indicated that such boundaries were fixed by actual survey. Obviously, by reason of the right expressly reserved to East Creek Electric Light and Power Company to raise and lower the waters" of" East-Canada Lake and Green Lake, the level of those tAvo lakes was not constant. We find nothing in the 1918 deed which excepts from the conveyance to the State those lands which may become submerged by the exercise of flowage rights expressly reserved to the-Power Company. Proof that during substantial periods of each year the lands in suit Avere submerged will not serve as a basis in laAV to defeat the State’s title to those lands which the record shows were not excepted from the 1918 deed to the State.

In -each action the judgments should- be reversed and a new trial granted, with costs to abide the event.

Lottghran, Ch. J., Conway, Thauher, Dye and Medalie, JJ., concur; Desmond, J., dissents on the ground that the question of whether the lands here involved were within the meaning of the exception in the deed was, on this record, a question of fact for the jury.

Judgments reversed, etc.


author: Desmond, J.

text:
    In the Matter of the Accounting of R. Garfield Snyder, as Executor of Anne M. Goebel, Deceased. Charles H. Watts, as Executor of R. Garfield Snyder Deceased, Appellant Emma Ziegler et al., Respondents.
    Argued November 26, 1945;
    decided January 17, 1946.

      Norman Winer for appellant.
    I. The surcharge cannot be supported since the drawee bank properly charged $5,000 to the account of decedent in the bank, and the drawee paid the check as drawn. The drawee is a single corporation licensed to do a banking business. Its several branches own no property; no branch, as such, is responsible for debts and no branch can be sued. (Banking Law, § 14, subd. [g]; §§ 29,105.) II. The fact that “ Fordham ” had been written on decedent’s check, dated June 27, 1939, in no wise impinged upon the validity of the payment. (Troy City Bank v. Lauman, 19 N. Y. 477; Levy v. Arons, 81 Misc. 165; Booth v. Powers, 56 N. Y. 22; Osborn v. Hall, 160 Ind. 153; Steele v. Lord, 70 N. Y. 280; Griffith v. Reed, 21 Wend. 502; Suydam v. Westfall, 2 Denio 205.) III. Even if a check is presented for collection, if the bank is willing to pay at one place a check drawn upon an account kept in another, it may do so and thereby be fully discharged. (Irwin v. Bank, 38 Upper Canada, Q. B. Reports 374.) IV. The check was paid at the clearing house on June 28th. The bookkeeping debits and credits were corrected on July 7th. To say that payment was not effected until “ Lexington’s ” bookkeeping entry on July 10th is sophistry. The bookkeeping entry is not the payment but merely the evidence of payment. (Baldwin’s Bank v. Smith, 215 N. Y. 76; Sokoloff v. National City Bank, 250 N. Y. 69.) V. The surcharge cannot be supported because it was not a proper remedy.
      (O’Conner v. Gifford, 117 N. Y. 275; Matter of Fantl, 249 App Div. 392; Gongatware’s Estate, 265 Pa. 512; Anderson v. Piercy, 20 W. Va. 282.) VI. The other check for $5,000, dated July 7, 1939, was given to claimant by decedent to pay for services previously rendered, for which services decedent assumed an obligation to pay. (Stimson v. Vroman, 99 N. Y 74; May v. Curley, 113 N. Y. 575; Leask v. Hoagland, 205 N. Y. 171; Hull v. Littauer, 162 N. Y. 569; Matter of Gallagher, 153 N. Y. 364; Blanshan v. Russell, 32 App. Div. 103, 161 N. Y. 629; Root v. Strang, 77 Hun 14; Yarwood v. Trusts & Guarantee Co., Ltd., 94 App. Div. 47, 182 N. Y. 527; Matter of Bradbury, 105 App. Div. 250; Matter of Whiteman, 268 App. Div. 591.)

      William H. Hayes and James J. Beha for respondents.
    I. Decedent’s check of June 27, 1939, was a gift and therefore revocable at any time before the $5,000 was paid over or transferred from the decedent’s account to that of the claimant payee by the drawee bank. (Matter of Ryan, 291 N. Y. 376; Matter of Mead, 90 Misc. 263, 173 App. Div. 982, 221 N. Y. 645; Provident Institution for Savings v. Sisters of St. Francis, 87 N. J. Eq. 424, 88 N. J. Eq. 342; Burrows v. Burrows, 240 Mass. 485; Edwards v. Guaranty Trust & Savings Bank, 47 Cal. App. 86.) II. The decedent’s check of June 27, 1939, was not paid until two days after her death. Each branch of the Corn Exchange Bank Trust Company is a separate bank entirely distinct from every other bank for the purposes of the presentment and payment of checks. (Negotiable Instruments Law, § 350; Chrzanowska v. Corn Exchange Banh, 173 App. Div. 285, 225 N. Y. 728; Sokoloff v. National City Bank, 250 N. Y. 69; Clinton Trust Co. v. Compania Azucarera Central Mabay S. A., 172 Misc. 148, 258 App. Div. 780; Pan-American Banh & Trust Co. v. National City Bank, 6 F. 2d 762; Marlboro Trust Co. v. Elliott, 86 F. 2d 315; In re Harris, 27 F. Supp. 480.) III. The alteration by the payee’s secretary of the decedent’s check of June 27, 1939, was a material alteration which rendered' the check void, except as against him. (Negotiable Instruments Law, §§ 205, 206; Golden v. Furniture Frame Factories, Inc., 235 App. Div. 704; Berks County Trust Co. v. Lyte, 250 Pa. 543; Marion Savings Bank v. Leahy, 200 Iowa 220; Mechanics’ American Nat. Bank v. Helmbacher, 199 Mo. App. 173; Born
      v. Lafayette Auto Co., 196 Ind. 399; Keller v. Rock Island State Bank, 292 Ill. 553; Wright v. Austin, 1 S. W. 2d 703 [Tex Civ. App.].) IV. The alteration of the decedent’s check of June 27,1939, was obvious and no subsequent holder of that check "was a holder in due course. (Negotiable Instruments Law, § 91; New Rochelle Securities Co. v. International Thrift Society, 244 App. Div. 824, 270 N. Y. 52; Sundail Construction Co. v. Liberty Bank, 277 N. Y. 137; National Ulster County Bank v. Madden, 114 N. Y. 280; Elias v. Whitney, 50 Misc. 326.) V. The executor’s claim for $5,000 on the decedent’s check of July 7, 1939, was properly disallowed. There is sufficient evidence to support the Surrogate’s finding that said check was without consideration. (Matter of Humfreville, 6 App. Div. 535; Platt v. Hollands, 85 App. Div. 231; Matter of Dole, 168 App. Div. 253 ; Collyer v. Collyer, 113 N. Y. 442; Penfield v. Penfield, 155 App. Div. 177.)
   Desmond, J.

Anne Marie Goebel died on July 8, 1939. On June 27th of that year she had delivered to Dr. E. Garfield Snyder her check to his order for $5,000, and again on July 7th had turned over to him another check for the same amount. Dr. Snyder tendered both checks to a bank other than the one on which they were drawn, for deposit in his own account. The check first above described was credited to Dr. Snyder’s account. The second $5,000 check, mailed to Dr. Snyder’s bank for deposit on the day of Miss Goebel’s death, was, because of her death, not honored by her bank. When Dr. Snyder brought this proceeding to settle his accounts as Miss Goebel’s executor, the residuary legatees moved for a $5,000 surcharge against him by reason of his having collected that amount for himself on the first check. They objected also, to a claim which he had put in against the estate for $5,000 for medical services, which claim, according to him, was evidenced by the second, or uncollected, $5,000 check. The Surrogate held against Dr. Snyder as to both items. The Appellate Division affirmed unanimously, and we granted leave to appeal. Dr. Snyder thereafter died, and his executor is the appellant in this court.

As to the second above-mentioned check — the one which was not presented for payment until after Miss Goebel’s death — the Surrogate found that there was no consideration for the giving of the instrument (see Matter of Mead, 90 Misc. 263, affd. 173 App. Div. 982, affd. 221 N. Y. 645). That finding, affirmed by the Appellate Division, is well supported by the proof. We therefore affirm so much of the decree as disallows Dr. Snyder’s $5,000 claim.

The other $5,000 check — the one first above described — was a gift from Miss Goebel to Dr. Snyder. The holdings below are that the check after issuance, became a void instrument because of a “ material alteration ” made therein and, further, that, because of facts to be narrated herein, it was not a proper charge against the estate because not actually paid until after Miss Goebel’s death. On June 23, 1939, four days before the check was issued, Miss Goebel had received payment of an inheritance of some $16,000. Being confined to her home because of the illness from which she died about two weeks later, she asked Dr. Snyder, her friend and professional associate, to start a new bank account for her with the $16,000. For this purpose she prepared and handed him, with the $16,000 check, a letter addressed to the Corn Exchange Bank Trust Company asking it to open a bank account in her name and in that amount. Dr. Snyder delivered the check and the letter to the nearby ‘ ‘ Lexington ” branch of that bank. A bank employee gave Dr. Snyder a “ duplicate deposit slip ”, also a checkbook. Four days later, on June 27th, Miss Goebel presented Dr. Snyder with the $5,000 check, made out to his order on one of the check blanks from her new checkbook, which check, in its printed heading, described the “ Lexington Branch ” of the Corn Exchange Bank Trust Company. Dr. Snyder sent his secretary to that branch to have the check certified but on arrival there the secretary was told that certification was impossible, because, according to the branch bank manager, Miss Goebel’s account was at the “ Fordham ” branch of the same bank. The Lexington branch manager suggested to the secretary that she run a line through the word Lexington ’ ’ on the heading of the check, substitute therefor the word “ Fordham ”, then deposit the check in Dr. Snyder’s account (at another bank). All this the secretary did, and her markings on the check, so made, have been held below to have constituted a “ material alteration ”, absolutely voiding the instrument. As it turned out later, the bank itself had made a mistake and, having mislaid the letter originally presented to it when Dr. Snyder opened the account for Anne Marie Goebel at its Lexington branch, had credited the original $16,000 to the account of one Anna Marie Goebel at the bank’s Fordham branch. Dr. Snyder’s secretary, after changing the word “ Lexington ” to “ Fordham ”, at the bank’s own suggestion, put it into Dr. Snyder’s bank for deposit, whereupon it passed through the Clearing House, and was, on June 28th, debited against the Fordham branch account into which the bank had, by mistake, put Miss Goebel’s $16,000 deposit.

All the above came to light on Friday, July 7, 1939, the day before Miss Goebel’s death. The bank discovered its error, or series of errors, and began to reverse the processes, so as to make the matter right. On that day the Fordham branch debited Anna M. Goebel’s ledger account there in the amount of $16,000 and credited that account $5,000 (for the check). On the same day the Lexington branch did what it had been instructed on June 23d to do — it opened a $16,000 account in the name of Anne Marie Goebel. Because of its own rules or customs, it did not, however, debit that newly opened “ Lexington Branch ” account with the amount of the $5,000 check until it had actually received that instrument back from its Fordham branch. The check did not arrive at the Lexington branch until July 10th, two days after Miss Goebel’s death. Because of that fact, the holdings below are that the check was not “ paid ” until after her death, and that at the time of her death the transaction between Miss Goebel and Dr. Snyder was a mere uncompleted gift. To this we cannot agree. On "the day before the death, the confusion had been all cleared away and the bank had put into motion all the procedures necessary to straighten out the books. Nothing done afterwards by the bank was any more than a detailed carrying out of the bank’s procedures for correcting its records (see Sokolof v. National City Bank, 250 N. Y. 69, 76, 77; Baldwin’s Bank v. Smith, 215 N. Y. 76, 84). Actually the $5,000 check of June 27th had been “ paid ” long before the blunder was discovered, since that check, in due course, had been charged by the Corn Exchange Bank Trust Company itself against the very account into which it had put the $16,000 deposit. The check was issued as an order or draft against that $16,000 owing by the bank to Miss Goebel. When that draft was honored and an appropriate $5,000 debit made against the $16,000 credit, and a corresponding $5,000 credit (never revoked) made to Dr. Snyder’s own bank of deposit, the check was in fact and in law “ paid ”,'and we so hold.

As to the character and effect of the “ alteration ” also, we find ourselves in disagreement with the holdings below. We do not think that the substitution of the word Fordham ” for the word Lexington ” was in any way material. An alteration it was, but the instrument as so altered expressed and effectuated the exact and unquestioned intent of the maker. The purpose of Miss Goebel was to draw a draft on the Corn Exchange Bank Trust Company, her debtor, in favor of Dr. Snyder, for $5,000, to be subtracted from the credit standing in her favor with that bank. The Corn Exchange Bank Trust Company is a single corporation, and was the sole debtor, no matter how many branches it maintained. Section 350 óf the Negotiable Instruments Law, making branches separate banks for certain purposes of collection inter sese of deposited items, lias no bearing on.this case. Nor was this a material alteration ” within the language or purpose of sections 205 and 206 of the Negotiable Instruments Law. The change in the check was “ to make it express the real bargain of the parties ” (Lehman, J., in Levy v. Arons, 81 Misc. 165, 166, quoting from Booth v. Powers, 56 N. Y. 22, 31).

The orders should be reversed, with costs to all parties appearing separately and filing briefs, and the matter remitted to the Surrogate’s Court for further proceedings not- inconsistent herewith.

" Loughran, Ch. J., Lewis, Conway, Thaoher, Dye and Medalie, JJ., concur.

Orders reversed, etc.


author: Conway, J.

text:
    Louis Solomon, Appellant, v. Atlantis Steel Partition Co., Inc., et al., Respondents.
    Argued October 10, 1945;

      decided January 17, 1946.

      George Rosling for appellant.
    I. The course of dealings between the parties operated to clear up any uncertainties as to the meaning and effect of the contract and to estop defendant company, the seller, from belatedly claiming a construction inconsistent with said dealings. II. If the contract provisions are ambiguous or obscure, practical construction by the parties controls as to intent. (Carthage T. P. Mills v. Vil. of Carthage, 200 N. Y. 1.) III. The judgment in replevin was supported by the evidence. (Stamford Extract Mfg. Co. v. Oakes Mfg. Co., 9 F. 2d 301; Kimberly v. Patchin, 19 N. Y. 330; Gourd v. Healy, 206 N. Y. 423; Lehman v. Mayer, 68 App. Div. 12; Marshall v. Friend, 33 Misc. 443, 59 App. Div. 628; Samson v. Rose, 65 N. Y. 411.)

      William Weisman and Norman Laidhold for respondents. I. The contract was clear and unambiguous.

      (Gearns v. Commercial Cable Co., 293 N. Y. 105; Zora Realty Co. v. Metropole

      Food Corp., 268 App, Div. 493, 294 N. Y. 742; Skinner v. Paramount Pictures, Inc., 294 N. Y. 474; Nau v. Vulcan Rail and Construction Co., 286 N. Y. 188; Hop-wood Plays, Lnc., v. Kempei, 263 N. Y. 380; Hutchison v. Ross, 262 N. Y. 381; Central Union Trust Co. v. Trimble, 255 N. Y. 88.) II. Plaintiff failed to establish that he was entitled to recover in replevin. (Miller v. O’Brien’s Fireproof Storage Warehouse, Inc., 248 App. Div. 761; Biegeleisen v. Cohen, 192 N. Y. S. 321; Meyer v. Smith, 148 App. Div. 840; Equitable Trust Co. of N. Y. v. Majestic Hotel Co., Inc., 237 App. Div. 166, 262 N. Y. 486.)
   Conway, J.

The plaintiff, a distributor of fluorescent lighting fixtures, entered into a contract with Atlantis Steel Partition Co., Inc., a manufacturer of fixtures (hereinafter referred to as Atlantis), whereby he agreed to purchase, for the term of one year, all of his requirements from Atlantis. The credit of the plaintiff was good. That of Atlantis was poor by reason of prior financial difficulties. Therefore, it was provided in the contract that Atlantis should have the option either to buy sheet steel in the open market or to require the plaintiff to purchase it, using his credit, and then to. turn it over to Atlantis. The price to be charged by the latter for the manufacturing of the fixtures from the steel purchased was to be the same whichever was the purchaser. If Atlantis purchased the steel, it would, of course, pay for it. If plaintiff made the purchase, Atlantis was to repay plaintiff by billing him at the contract price for the fixtures and at the same time crediting him for the steel used in manufacturing them. There was a problem presented to the contracting parties in the event Atlantis exercised its option to have the plaintiff purchase the steel. That was because in the course of manufacture there was a wastage of steel which might run as high as 25%. If Atlantis purchased the steel, there was no problem. It paid for the steel, absorbed the wastage and billed for the fixtures. The wastage would have been figured in the contract price. If the plaintiff purchased the steel with his credit and turned that steel over to Atlantis, he had to be paid for each pound at the agreed price and Atlantis had still to absorb the wastage in the manufacture for, naturally, plaintiff was not required to pay a higher price for the fixtures' because he used his own credit to purchase them than if Atlantis had itself made the purchase, Those matters presented no difficulty. The. problem presented involved the steel inventory against which Atlantis wished the wasted steel to be credited, so that it might not be held to account for the sheets no longer in the pile by reason of the wastage. A reading of the contract, and particularly three paragraphs which we shall quote, makes clear from the phrasing the existence of the problem and the solution at which the parties arrived, even apart from their conduct as indicated by the exhibits. The following are Paragraphs Third, Ninth and Tenth. In them, the plaintiff is the 6 ‘ Buyer ’ ’ and Atlantis the “ Seller.”

“ Third: The Seller shall charge and the Buyer shall pay to the Seller for such fluorescent lighting fixture bodies delivered to Buyer, the following prices:

“For,fixture sizes up to and inclusive of twenty-five (25) inches in length twelve c.ents (12(5) per pound.

“ For-fixtures sizes in excess of twenty-five (25) inches in length and up to and including fifty-four (54) inches in length, eleven (11(5) per pound.

“For fixtures in excess of fifty-four (54) inches in length, special prices will be agreed upon before any order for the fabrication thereof is accepted; the failure to agree upon any such price shall not be deemed a waiver by either party of any of the terms covenants and conditions of this agreement or a default on the part of either party under any terms, covenant and condition of this agreement.

“ The above prices are predicated upon a cost of steel to the seller of not more than five cents (5(5) per pound. Should the price of steel rise above five cents per pound, then it is agreed that the Buyer shall absorb such increase and pay to the Seller the amount of such increase in addition to the price above specified.”

“ Ninth: The Buyer, if called upon by the Seller, shall purchase the necessary steel, if obtainable at market prices, to fabricate all fluorescent lighting fixture bodies ordered' by him and said steel shall be delivered to the Seller’s premises and shall remain the property of the Buyer whether in its original state or manufactured into a fluorescent fixture body, subject, of course, to the lien of the Seller for any sums which may be due •it by virtue of this agreement. (Rider) If the Buyer cannot purchase the necessary steel at market price, he shall not be liable for damages to the Seller, by reason of non performance herein.

“ The Seller agrees to use such steel as may be delivered to it exclusively upon orders received by it from the Buyer and shall keep such steel separate and apart so as to be able to be identified as belonging to the Buyer.

The Buyer shall have the privilege of inspecting the steel at any time and checking inventory thereof.

“ Tenth: Upon making payment for any fluorescent fixture bodies delivered'1 by the Seller to the Buyer, which are fabricated from steel purchased by the Buyer, the Buyer shall pay the price specified in Paragraph * Third ’ of this agreement, less only the actual cost to the Buyer of the steel used in the fluorescent lighting fixture bodies then delivered. It is intended that the Buyer shall only be credited for the cost to him of the steel as such steel is used by the Seller in the delivery of'finished fluorescent bodies to the Buyer.

“It is understood by the parties hereto that in fabricating the fluorescent lighting body fixtures from the steel purchased by the Buyer, there will be a loss in cutting the steel or otherwise fabricating it of approximately twenty-five percent (25%). The Seller shall not be held accountable for this 25%, and an allowance in that amount will be given to the Seller at any time that an accounting for fabricated steel is requested by the Buyer of the Seller for steel purchased by the Buyer and delivered to the Seller’s premises to be used as herein contemplated.” (Emphasis supplied.)

Paragraph Tenth had two parts. The first dealt with money. The second dealt with steel. Atlantis was quite willing to credit plaintiff “ for the cost to him of the steel as such steel is used by the Seller in the delivery of finished fluorescent bodies to the Buyer.” What Atlantis apparently feared was that under paragraph Ninth, since it was to use the steel delivered to it and paid for by plaintiff exclusively upon orders received from plaintiff, and to keep “ such steel separate and apart so as to be able to be identified as belonging to the Buyer ”, the plaintiff might exercise his privilege of inspecting such steel and checking the inventory thereof, and the quantity of steel lost in wastage in fabrication would not be available for inspection. Therefore, the provision was inserted in paragraph Tenth that Atlantis should not be held accountable for that 25% and that an allowance in that amount should be given to it at any time that an accounting for fabricated steel was requested by plaintiff “ for steel purchased by the Buyer and delivered to the Seller’s premises to be used as herein contemplated.” For a long period the parties so construed the contract and there was credited to plaintiff dollars for payment on steel furnished by him and wasted in fabrication and that amount of wastage in pounds was deducted from inventory.

So read, the purpose and intention of the parties is given full play and is clear. There is no ambiguity. On Atlantis’ own figures it was possessed of the number of pounds of plaintiff.’s steel of the value fixed ($6,638.10) in the judgment granted plaintiff at Trial Term and defendant’s first counterclaim, therefore, was there properly dismissed.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs.

Loughran, Ch. J., Lewis, Desmond, Thauher, Dye and Medalie, JJ., concur.

Judgment accordingly.


text:
    In the Matter of Feuer Transportation, Inc., Appellant. Local Union No. 445 of International Brotherhood of Teamsters, etc., Respondent.
    Argued October 2, 1945;
    decided January 17, 1946.

      Julius Zizmor and Nathan E. Zelby for appellant.
    A court is not disabled from properly disposing of a matter, nor is its power restricted because allegedly neither of the parties has asked for the particular relief which the court grants. A court may fashion the decision and mgld the relief to the necessities of the case. The court was invested with the right to designate a proper arbitrator under its general power, to grant such other, further and different relief as to the court might seem just and proper as requested in appellant’s notice of motion.

      Victor D. Levitt, Jr., for respondent.
    I. Special Term lacked jurisdiction to direct arbitration before an arbitrator selected by the court, in the absence of any petition therefor by respondent, the aggrieved party. (Civ. Prac. Act, § 1450; Matter of Orange Pulp & Paper Mills, Inc. [Pulp Sales Corp.], 261 App. Div. 840, 285 N. Y. 752; Matter of Sauberman [Goldberg, Inc.], 267 App. Div. 192; Matter of Tyd v. Local Loan Co., 183 Misc. 139.) II. Respondent’s demand for arbitration and the arbitration proceedings begun thereunder were proper and valid. (Matter of Lipman [Haeuser Shellac Co.], 263 App. Div. 880, 289 N. Y. 76.) III. The order compelling respondent to arbitrate before the arbitrator selected by the court is inequitable.
   Medalie, J.

Appellant, Feuer Transportation, Inc., entered into two contracts with respondent Local Union No. 445 on wages and working conditions. Each ran for two years, the first from September 1, 1940, and the other from September 1, 1942. Each contract had a different arbitration provision for the settlement of disputes. The earlier contract provided in case of disagreement for the appointment of an umpire by both parties. The later contract permitted either party to initiate proceedings before the American Arbitration Association pursuant to its rules.

In May, 1944, the local union requested Feuer Transportation, Inc., to discuss back wages which it claimed were due to five former employees. The dispute was under both contracts. No progress was made as the appellant insisted that these five men were independent contractors and not hired truckmen. The efforts to settle having failed, the union notified appellant that it would proceed to arbitration before the' American Arbitration Association of the dispute arising under both contracts. Appellant ignored the association’s request for the selection of arbitrators from its submitted list, and the association selected its own arbitrators as its rules provided. There is no dispute as to these facts.

Appellant moved at Special Term for a stay of the proceedings before the American Arbitration Association. The stay was granted without prejudice to a new proceeding under the later contract. Special Term also appointed an arbitrator to hear the dispute under the first contract. On appeal by the local union, the Appellate Division continued the stay without prejudice to new proceedings under the second contract, but modified, upon questions of law,” the order of Special Term by striking from it the provision for the appointment of the arbitrator. The net effect was to leave the parties without arbitration. The respondent union does not appeal from so much of the Appellate Division’s order as stays the arbitration before the American Arbitration Association, and we are not therefore concerned with that aspect of the problem. But Feuer Transportation, Inc., claims it was entitled to have the arbitrator appointed by Special Term arbitrate at least the dispute arising under the first contract, and it is this question alone with which we are now concerned.

When appellant petitioned for a stay of the arbitration proceedings initiated by the local union before the American Arbitration Association in its notice of motion it asked in general terms for other and further relief. The proceedings for a stay were based on Civil Practice Act, section 1451, which provides for the granting of a stay of unauthorized arbitration proceedings. Appellant sought whatever relief the court might give it against any arbitration having no contract justification. The earlier contract provided for agreement by both parties on arbitration and the appointment by both of an arbitrator Such agreement had been made impossible by the designation of the American Arbitration Association by the local union to arbitrate under both contracts. In any event both sides failed to agree as provided by the earlier contract. But section 1452 of the Civil Practice Act provides that in the event of a lapse for any reason in the naming of an arbitrator or umpire, upon application of either, party to the controversy the Supreme Court may designate an arbitrator or umpire. Though without specific request to so act, Special Term made this designation. As appellant had submitted to the court its entire controversy under its agreements with the local union, Special Term was fully empowered to make the designation and for all practical purposes was asked to do so.

The provision of the Civil Practice Act referred to originated as part of the Arbitration Law enacted in 1920 (L. 1920, ch. 275). In 1937 these were transferred to the Civil Practice Act (L. 1937, ch. 341). Prior to this enactment, an arbitration agreement was easily violated. Before award or in any event .before final submission of a dispute under arbitration the agreement to arbitrate was revocable (Allen v. Watson, 16 Johns. 205; Bank of Monroe v. Widner, 11 Paige 529, 534; People ex rel. U. Ins. Co. v. Nash, 111 N. Y. 310; 2 Rev. Stat. of N. Y., part III, ch. VIII, tit. XIV, § 23). A court of equity would not compel specific performance of an agreement to arbitrate (Sinclair v. Tallmadge, 35 Barb. 602; Hurst v. Litchfield, 39 N. Y. 377).

Arbitration agreements, therefore, meant very little. Dissatisfaction with this situation was widespread. It was effectively dealt with in 1920 by the enactment of the Arbitration Law after a considerable campaign and with the sponsorship of the Chamber of Commerce of the State of New York, as well as substantial support from the Bar. Under the new statute arbitration became both orderly and enforcible and was made subject in effect to a decree for specific performance. A quarter of a century of its operation has demonstrated its usefulness and general acceptability. To work well it must operate with a minimum of delay and with all the flexibility which equity can give it. A dispute may arise in a simple case as to whether arbitration has been agreed upon, whether it should be enforced or stayed, and whether an arbitrator or umpire should be appointed. This case amply demonstrates that. In such situations, if arbitration is to be a working reality, all such questions can and should be decided in a single proceeding. A party-may ask specifically for one kind of relief to which he may not be entitled, but may at the same time be entitled to some other relief. If the relief to which a party is entitled is not granted and he is remitted to a new proceeding, the purposes of the reforms intended by the Arbitration Law of 1920 would be defeated. Instead of relief from legal technicality, the parties to an arbitration are given delay and a surfeit of legal procedure. Proceedings of this kind are equitable in character, and the practice of equity as to relief should be followed. In equity proper relief is ordinarily granted when the facts warrant regardless of what may have been asked for (Bloomguist v. Farson, 222 N. Y. 375; Sanders v. Soutter, 126 N. Y. 193, 201; Lightfoot v. Davies, 198 N. Y. 261, 273). In Spears v. Mayor, etc., City of N. Y. (87 N. Y. 359, 376), Earl, J., said: “ It is a general rule in equity that the relief to be administered will be adapted to the exigencies of the case as they exist at the close of'the trial.” That rule was well applied at Special Term upon undisputed facts.

The order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings not inconsistent with this opinion.

Loughran, Ch. J., Lewis, Conway, Desmond and Dye, JJ.„ concur; Thacher, J., dissents and votes to affirm.

Order reversed, etc.


text:
    In the Matter of Frank S. Hogan, as District Attorney of New York County, Respondent, against Supreme Court of the State of New York, Bronx County, et al., Respondents, and Max Katz et al., Appellants.
    Argued November 27, 1945;
    decided January 17, 1946.

      Frank J. Walsh for appellants.
    T. The writ of habeas corpus is the only remedy available to the prisoners. (Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131; Matter of Lyons v. Goldstein, 290 N. Y. 19.) IT. The Court of Special Sessions of the City of New York is an inferior criminal court of limited jurisdiction possessing no inherent general powers. It is not a court of continuing character and no statute confers upon it the right to interfere with its final judgment after imprisonment has attached and the term of court has expired and the court itself has separated. (Anspach v. Rider, 249 App. Div. 916; People ex rel. Starks v. Batten, 49 Hun 606; People v. Kraft, 229 App. Div. 281; People ex rel. Frank v. McCann, 253 N. Y. 221; People ex rel. Stumpf v. Craig, 79 Misc. 98; People v. Mittleman, 150 Misc. 394 y People ex rel. Hubert v. Kaiser, 150 App. Div. 541; People v. Foote, 144 Misc. 134.)

      Frank S. Hogan, District Attorney (Whitman Knapp, David DuVivier and Sylvia Jaffin Singer of counsel), for respondent.
    The Court of Special Sessions of the City of New York is a competent court of criminal jurisdiction and has inherent power to give relief against one of its own judgments alleged to have been procured by fraud. (Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131; Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Gersewitz, 294 N. Y. 163; Matter of Runk, 200 N. Y. 447; Sipperly v. Baucus, 24 N. Y. 46; Gibson v. Martin, 8 Paige 481; Proctor v. Wanmaker, 1 Barb. 302; Brick’s Estate, 15 Abb. Prac. 12; Campbell v. Thatcher, 54 Barb. 382; People ex rel. Dunnigan v. Webster, 14 Misc. 617, 1 App. Div. 631; People v. Brown, 153 App. Div. 234; Matter of Latson, 1 Duer 696.)
   Desmond, J.

The appeal is from an Appellate Division order of prohibition, which restrains the Supreme Court from continuing to assume jurisdiction in habeas corpus proceedings brought by appellants Katz and Wexler. Katz and Wexler, imprisoned in the New York City penitentiary, sued out their habeas corpus writs on petitions which alleged that the sentences they are serving, imposed by the New York City Court of Special Sessions, were illegal, because, according to petitioners, they had been defrauded into pleading guilty. When those habeas corpus proceedings came on to be heard at Special Term of Supreme Court, the District Attorney moved to dismiss them. Citing Matter of Lyons v. Goldstein (290 N. Y. 19) and Matter of Morhous v. N. Y. Supreme Court (293 N. Y. 131), he made the point that redress for wrongs such as those complained of by Katz and Wexler could not be -had through collateral attack on the judgments of conviction in habeas corpus. The remedy, he urged, was by a motion to vacate, that is, by a “ coram nobis ” type application, addressed to the sentencing court itself, i.e., to Special Sessions. The motion to dismiss was denied at Special Term, that court holding that the rule announced in Matter of Lyons v. Goldstein and Matter of Morhous v. N. Y. Supreme Court (supra), was not applicable to attacks on judgments of conviction rendered by “ inferior courts of criminal jurisdiction ” like Special Sessions (see N. Y. Const., art. VI, § 18, and N. Y. City Crim. Cts. Act, § 2). Such courts, held Special Term, have no continuing jurisdiction after judgment and are not courts of record and so, the Special Term holding was, they, unlike criminal courts of record and of continuing jurisdiction, have no inherent or incidental power to revise and correct their judgments after the trial is over and judgment has been declared.

After the District Attorney’s motion to dismiss the habeas corpus proceedings had been denied, he petitioned the Appellate Division for, and was granted, the order of prohibition here appealed from. We thus have the question of whether the New York City Court of Special Sessions has power, in an appropriate situation, to entertain and act upon a motion to it for a vacatur of one of its judgments on the ground that the judgment is void for fraud or similar reason. Such a court is not a court of record (Judiciary Law, § 2, People ex rel. McGrath v. Supervisors, 119 N. Y. 126, 130). It is true also, according to historic theory, that it is not a ‘ ‘ court of continuing jurisdiction ” (see People v. Powell, 14 Abb. Pr. 91, 93; Matter of Anspach v. Rider, 249 App. Div. 916). To some extent that historic concept is still true in fact as to the New York City Court of Special Sessions, since each part of such court consists of three justices whose assignments move them from group to group (see N. Y. City Crim. Cts. Act, § 14). But the New York City Special Sessions Court is, nonetheless, a court of original jurisdiction as to certain crimes (all misdemeanors except libel, N. Y. City Crim. Cts. Act, § 31; see, also, Code Crim. Pro., § 11), with full and complete power to dispose of such criminal causes. Courts of Special Sessions act within a much narrower sphere than those which have the power to try graver causes of offenses, but within that restricted sphere have all the powers incidental to the proper discharge of duty ” (People ex rel. Dunnigan v. Webster, 14 Misc. 617, 619, affd. 1 App. Div. 631). One of the incidental powers which every competent court needs, and must have, to carry out effectually its specific statutory powers, is the power to strike from its records judgments which are void for fraud, not merely erroneous in law (Furman v. Furman, 153 N. Y. 309, 314; Gumbel v. Pitkin, 124 U. S. 131, 144; Arkadelphia Co. v. St. Louis S. W., Ry. Co., 249 U. S. 134, 146). It is an old, old principle that a duly constituted court, even in the absence of express statutory warrant, has the right “ to exercise so efficient a control over every proceeding in an action as to effectually protect every person actually interested in the result, from injustice and fraud, and that it will not. allow itself to be made the instrument of wrong, no less on account of its detestation of every thing conducive to wrong than on account of that regard which it should entertain for its own character and dignity ” (Baldwin v. Mayor &c. of New York, 42 Barb. 549, 550, affd. 45 Barb. 359).- Special Sessions courts, as to the criminal causes within their scope, need that power as much as do the courts of general criminal jurisdiction, such as those immediately dealt with in the Morhous and Lyons cases (supra) and in People v. Gersewitz (294 N. Y. 163).

That Special Sessions is not a court of record does not deprive it of power to entertain “ coram nobis ” applications. The distinctions between courts of record and not of record, do not • answer the question at all. Back in the days when the Surrogate’s Court was not one of record, its exercise of such incidental powers was frequently upheld (Sipperley v. Baucus, 24 N. Y. 46).

Nor should the theory, or the fact, that courts of Special Sessions are noncontinuous ” and become “ functus officio ” at the end of every case, leave them powei’less, after judgment, to deal with frauds practised on them. Despite that lack of continuity, they could at common law (before the passage of Penal Law, § 2188, or Code Grim. Pro., § 470-a) suspend sentence (People ex rel. Dunnigan v. Webster, supra; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288; 1 Bishop’s Criminal Procedure [2d ed., 1872], § 1124). On the New York City Special Sessions Court there have in fact been conferred by statute several different kinds of authority to deal with offenders after sentence (see for instance subdivisions 2,4 and 8 of section 31, and sections 152 and 154 [as renum. L. 1933, eh. 746] of the N. Y. City Crim. Cts. Act). We do not, however, look to those statutes for the power herein declared but consider it to be lodged in the Special Sessions Court as an incident to its effective jurisdiction over certain crimes specified by the Legislature.

Finally, a holding that Special Sessions has no right to deal with such a matter by way of “ coram nobis ” would deprive these appellants of their constitutional rights to due process. The writ of habeas corpus they cannot use, since their convictions were by a court which had jurisdiction of their persons and of the crimes they were charged with, and power to declare the particular sentences meted out to them (see Morhous case, supra; also People ex rel. Carr v. Martin, 286 N. Y. 27, and People ex rel. Wachowics v. Martin, 293 N. Y. 361). Due process is lacking unless some corrective process is available to them (Mooney v. Holohan, 294 U. S. 103, 112, 113; Morhous opinion, supra, 293 N. Y. at p. 135). A remedy there must be. The. approach to it must be by the only visible route — by motions addressed to the sentencing court.

Neither party questions the propriety of using a prohibition proceeding as the method for bringing the present dispute before the Appellate Division.

The order appealed from should be affirmed, without costs.

Loughran, Ch. J., Lewis, Conway, Thaoher, Dye and Medalie, JJ., concur.

Order affirmed.


author: Per Curiam.

text:
    National Brokerage Corporation, on Behalf of Itself and All Others Similarly Situated, Appellant, v. Travelers Insurance Company, Respondent.
    Argued November 26, 1945;
    decided January 17, 1946.

      Norman Winer and Alfred B. Nathan for appellant.
    I. The insurance company is absolved only if its good faith is established. (Clinchy v. Grandview Dairy, Inc., 283 N. Y. 39; Kirke La Shelle Co. v. Armstrong Co., 263 N. Y. 77; Wigand v. Bachmann-Bechtel Brewing Co., 222 N. Y. 272.) II. Summary judgment for the period between May 21, 1941, and August 2, 1941, during which the insurance policies were in effect, was erroneous. III. Summary judgment cannot be granted to the insurance company where the issue is one of good faith, unless the good faith can be conclusively established by documentary evidence.
      (Levine v. Behn, 282 N. Y. 120; Hirsch v. Jones, 191 N. Y. 195; Tousey v. Hastings, 194 N. Y. 79; Kiernan v. Krauth, 242 App. Div. 772; Foltis, Inc., v. City of New York, 287 N. Y. 108.) IV. There is no contrary law of the case.

      John G. Donovan and Louis P. Galli for respondent.
    I. The action has no merit because the insurance broker has failed to come forth with any proof of the cause of action sued upon. (Burgin v. Ryan, 238 App. Div. 122; Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220.) II. It is the law of this case that the insurance company’s bad faith is not in issue. (Curry v. Mackenzie, 239 N. Y. 267; Degnan v. General Acc., F. & L. Assur. Corp., Ltd., 161 App. Div. 439, 221 N. Y. 484.) III. Even if the insurance company’s bad faith were in issue, the broker has shown no facts constituting bad faith, or facts from which ■ bad faith can be inferred. IV. The broker is not entitled to summary judgment for the period from May 21, 1941, to August 2, 1941, in which the policies were in effect. V. The court below properly granted the company’s motion for summary judgment. (Chance v. Guaranty Trust Co., 173 Misc. 754, 282 N. Y. 656; Levine v. Behn, 282 N. Y. 120; O’Brien v. American Beverage Corp., 267 App. Div. 813.)
   Per Curiam.

There is presented to us the question whether on this record the granting of a motion for summary judgment in favor of defendant was proper. Plaintiff’s affidavit makes out its cause of action for breach of contract. While defendant did not plead the facts as a separate defense, it seeks to avoid liability by alleging affirmatively in its affidavits that pláintiff’s "designation as broker was rescinded by the insured, James Stewart Company Associates. Plaintiff in turn does not deny the attempted substitution of brokers but seeks to avoid the holding in Clinchy v. Grandview Dairy, Inc. (283 N. Y. 39), by showing that' it was procured through the intervention of defendant acting in its own interest and not because the substitution was directed by the insured. No affidavit was submitted by defendant from any officer or agent of James Stewart Company Associates. If the plaintiff can succeed in this effort, the Clinchy case may be distinguished upon two grounds: (1) Because of defendant’s bad faith and (2) Because here the policies were delivered and the insurance was in effect for over two months when brokers other than plaintiff were designated. These questions appear to us to be open, notwithstanding the former dismissal of a cause of action predicated upon bad faith. Questions are presented which require a trial.

The judgments should he reversed and the motion for summary judgment denied, with costs in all courts.

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

Judgments reversed, etc.