author: Htjbbs, J.

text:
    Anthony Shuba, Appellant, v. George J. Greendonner, Respondent. Donald Bucher, Appellant, v. George J. Greendonner, Respondent. Leonard Zimmerman, Appellant, v. George J. Greendonner, Respondent. Angus La Londe, Appellant, v. George J. Greendonner, Respondent. Carson Baker, Appellant, v. George J. Greendonner, Respondent.
    (Argued April 20, 1936;
    decided May 19, 1936.)

      Daniel Scanlon for appellants.

      Jesse E. Kingsley for respondent.
   Htjbbs, J.

Appellants were passengers in a bus being operated upon a highway in this State. A Ford car, registered in the name of respondent in the State of Connecticut and being operated by respondent’s son, a minor over sixteen years of age, collided with the bus and caused injuries to appellants. The respondent’s son died as a result of injuries received in the collision. Both respondent and his son were residents of the State of Connecticut.

There is no doubt that respondent intentionally registered the car in his own name with knowledge of the terms of the Connecticut statute hereafter quoted. Moreover, he took out a policy of liability insurance in his name. He was permitted to prove on the trial that the negotiations for the purchase of the car were carried on by his son; that his son paid the purchase price, the license fee, insurance premiums and the other expenses of upkeep. The court charged the jury that proof that the registration was issued in his name was prima facie proof of his ownership, but that such proof was subject to rebuttal. It was left to the jury to determine whether the respondent was in fact the owner of the car. The jury rendered a verdict in favor of respondent. It is stipulated upon this appeal that the evidence was sufficient to justify the jury in finding that appellants were guilty of contributory negligence and that respondent’s son was free from negligence. The only question, therefore, is whether the trial court was in error under the facts in this case in submitting to the jury the question of ownership of the Ford car.

Section 1561 of the General Statutes of the State of Connecticut provides:

Sec. 1561. Motor vehicles owned by minors. The commissioner shall not register any motor vehicle owned by any person under sixteen years of age and shall not register any motor vehicle owned by any person between sixteen and twenty-one years of age unless such person shall file proof of financial responsibility in accordance with the provisions of section 1609, together with a certificate signed by either or both of the parents, as the commissioner may require, or the legal guardian of such person, approving or requesting the registration of such vehicle.”

In order to secure registration of a motor vehicle owned by respondent’s son, it was necessary, therefore, that he file a certificate of his parents approving such registration and also submit an insurance policy in the amount of $10,000 or other evidence of financial responsibility for a like sum. No attempt was made, however, to so register the car. Respondent testified: “ I had the car registered in my name.”

One of the important objects of registration of motor vehicles is to facilitate the identification of the owner. (Stroud v. Board of Water Commissioners, 90 Conn. 412; People v. MacWilliams, 91 App. Div. 176.)

Another purpose equally important is the protection of the general public using the highways by the elimination of certain classes of operators and by requiring the production of evidence of financial responsibility in the event of injury to others. (Vehicle and Trafile Law art. 6-A [Cons. Laws, ch. 71]. Cf. Conn. Gen. Stat., §§ 1561, 1609.)

Every provision of the Act which helps to compel the registration of motor-vehicles in the name of their true owner, makes it easier for the public to follow the instrumentality which is so frequent an aid to crime, and for the injured traveler to fasten responsibility for his injury and loss speedily upon him who caused it.” (Kaufman v. Hegeman Transfer & Lighterage Terminal, Inc., 100 Conn. 114, 121.)

While the car in question was owned by a resident of Connecticut and licensed by that State, the laws of the State of New York are not inapplicable to this situation. No motor vehicle can be operated upon the highways of this State without a registration in some State or nation. A non-resident owner who has complied with the regulations of his own domicile may by virtue of his foreign registration operate a motor vehicle upon our highways, (Vehicle and Traffic Law, § 51.)

The privilege so granted him is co-extensive with the privilege granted in his domicile to residents of this State. When he operates or permits to be operated his motor car upon our highways, he does so not only by virtue of his registration in the foreign State, hut by virtue of the provisions of statutes of this State.

We said in Ferris v. Sterling (214 N. Y. 249) that the registration of a vehicle by a person is prima facie evidence of his ownership. Further than that it was not necessary for us to go. In this case it is necessary to consider the question not there presented, whether one who has deliberately caused a car to be registered in his name as owner will be permitted, after it has been involved in an accident and caused injury, to deny the truth of that statement.

Whether we call it an estoppel or whether we decide that the action of the Legislature in regulating the use of such vehicles in this State establishes our public policy, makes no difference in the final result. The Legislature has been very specific in making rules for the purpose of facilitating identification of an owner by the police and the public, fastening responsibility for injuries and requiring evidence of ability to respond in damages to injured persons. The Vehicle and Traffic Law embodies most of these provisions. Under section 11, the owner must make application for registration. He must submit such evidence of ownership as the Commissioner requires. The certificate of registration must be carried in the car and when requested it must be shown to a police officer. The person must furnish any information necessary to identify the vehicle or its owner. The negligence of an operator other than the owner will in certain circumstances be attributable to the owner. (§ 59.) Strict regulations are enacted for the sale of an automobile and the registration thereof by the vendee and for the issuance and limited use of dealer’s plates. (§§ 61, 63.) Section 71 regulates the revocation of certificates of registration by a court in enumerated circumstances, such as certain violations of law, mental or physical disability, persistent violations of the law, gross negligence, etc. Article 6-A provides that certain classes of drivers must submit evidence of financial responsibility. In view of such provisions of our statute, can we say that one who has intentionally registered a vehicle in his own name can, after an accident, prove that he had never owned the vehicle? To allow that would be contrary to our public policy and nullify the statutory regulations.

That this vehicle was registered in another State should make no difference. We are not attempting either to interpret or to enforce the public policy of another State. This vehicle was permitted to operate upon our highways by virtue of our statutes, as our statutes provide that registration obtained in another State makes operation here lawful.

To permit the respondent to relieve himself of liability by proving that he was not in fact the owner of the automobile and thereby establish his illegal and fraudulent act in procuring its registration in his own name would be against public policy and would encourage fraudulent and illegal deceptions on the State in procuring the registration of automobiles in the names of persons who were not the owners thereof, directly in violation of the statute.

In each action the judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to appellants to abide the event.

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

Judgments reversed, etc.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    William H. McGowan, as Receiver of Penn National Bank and Trust Company of Reading et al., Respondents, v. Thomas C. Eastman et al., Individually and as Copartners under the Firm Name of Eastman, Dillon & Co., Appellants.
    (Argued April 15, 1936;
    decided May 19, 1936.)

      Francis S. Bensel and W. Frederick Knecht for appellants.

      Vincent A. O’Connor for respondents.
   O’Brien, J.

Defendants are members of a copartnership of stockbrokers which maintained its principal place of business in New York and a branch office at Reading, Pa. Ralph Prendergast had been its manager at Reading but, when this action was begun, he was no longer an employee. According to the complaint, George T. Cobb was cashier of the Penn National Bank and Trust Company of Reading and opened an account with defendants’ branch office in the name of the bank. Defendants conducted speculative transactions for Cobb without obtaining consent of the bank. Cobb utilized this account for his own purposes and paid to defendants out of it the sum of $204,000 of the bank’s money which he had converted to his own use. Such are the allegations. This action, instituted by the receiver of the bank and two surety companies which had reimbursed the bank for its losses, is to recover this amount.

Plaintiffs moved for an order directing defendants to attend upon examination before trial to have their testimony taken as adverse parties through Ralph Prendergast and one of the defendants. The motion was granted and the order directed that the examination be conducted through the taking of the testimony of Ralph Prendergast January 16, 1936, at Reading, Pa., and through the defendant Philip M. Brown January 14, 1936, at New York city. It further directed that defendants produce certain of their records on every occasion of examination of either Brown or Prendergast. The order was affirmed and the Appellate Division certified two questions to this court: “1, Did the court have the power, under article 29 of the Civil Practice Act, to direct the examination before trial of defendants, as adverse parties, through one Ralph Prendergast, their former employee? 2. Did the court have the power to compel defendants to produce their books and papers for the purpose of refreshing the recollection of Mr. Prendergast on his examination, pursuant to the order?

Plaintiffs’ purpose is the examination of an adverse party and their motion to examine defendants through one of the members of the defendant copartnership, Brown, was properly granted. Prendergast, however, is not a party nor is he an agent of a party. He is without the State and as a possible witness to be sworn on the trial or whose deposition may be read on the trial (Civ. Pr. Act, § 304) his testimony as that of “ any other person ” than a party may, of course, be taken. (Civ. Pr. Act, § 288.) But examination of a former employee of a party is not examination of that party through the former employee. It is nothing more than the examination of a witness. This is the rule which has long been applied by the intermediate appellate courts in this State and which we approve. (Chartered Bank of India v. North River Ins. Co., 136 App. Div. 646; Searle v. Halstead & Co., 139 App. Div. 134; Western Elevating Assn., Inc., v. Chapman, 238 App. Div. 14.) In the disposition of this motion, power rather than discretion was involved and we hold that the court was without power.

The examination of the witness Prendergast was directed to bé held January 16, 1936, at Reading, Pa., and the court ordered that defendants produce their books and records on that examination. The examination of defendants through Brown was directed to be held January 14, 1936, at New York. The examination of Prendergast is not the examination of a party. The books and papers are not in the custody of the “ person ” to be examined (Civ. Pr. Act, § 296) in Pennsylvania but are in the custody of the “ party ” to be examined in New York. In so far as the order directs their production on the examination of defendants, through Brown, the court’s disposition of plaintiffs’ motion is correct but that part which directs their production in Pennsylvania on the examination of a person who is not a party and who is not the custodian is erroneous for want of power.

In so far as appealed from the order should be reversed, with costs, and both questions certified answered in the negative.

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

Ordered accordingly.


author: Finch, J.

text:
    In the Matter of the Application of The City of New York, Appellant, Relative to the Closing of City Hall Place between Duane and Pearl Streets in the Borough of Manhattan. Helen H. Janeway et al., Respondents.
    (Argued April 15, 1936;
    decided May 19, 1936.)

      Paul Windels, Corporation Counsel (Paxton Blair, Joseph F. Mulqueen, Jr., and Reuben Levy of counsel), for appellant.

      August G. Klages for respondents.
   Finch, J.

This proceeding was brought by the city of New York pursuant to chapter 752 of the Laws of 1923, to condemn the rights in the bed of a street named City Hall place.

City Hall place has been a public street since 1794. In 1914 the city brought condemnation proceedings to acquire property for a new county courthouse. City Hall place was included within the area acquired. No attempt was made in the 1914 condemnation proceedings to take title to the bed of the street because the city believed that it already owned this fee, but the city did become the owner of the land abutting on the street.

In 1928 the Federal government sought a site for a new courthouse and the city entered into negotiations with it for the sale of that portion of the land condemned in 1914 which remained unoccupied including City Hall place. In order to carry out these negotiations the city undertook to close and discontinue this street. Accordingly on November 14, 1929, pursuant to section 442 of the Greater New York Charter (Laws of 1901, ch. 466, as amd. L. 1917, ch. 632), the Board of Estimate and Apportionment passed a resolution approving a change of the general map so as to show City Hall place as closed or discontinued and applied the name “ City Hall Place ” to a new street some distance away. The new map was filed on February 7, 1930. Subsequently the city physically closed the street by fencing it off, changing its grade and erecting signs reading No Thoroughfare.” The city learned of its mistake in 1931 and immediately commenced these proceedings to close the street and. to acquire title to the bed of the street. Two of the present claimants filed answers to the petition of the city for an order directing the fixing of compensation for the title to be acquired. Mr. Justice Dore denied the motion to dismiss, held that the proceedings could be brought and granted an order directing that a hearing be held to fix the compensation. An appeal was taken from the order but subsequently was withdrawn and the land was conveyed to the Federal government.

The proceedings to fix compensation came on before Mr. Justice Rosenman. The motion to 'dismiss the proceeding was renewed. Mr. Justice Rosenman granted the motion holding that chapter 752 of the Laws of 1923 was not applicable under the circumstances, that, therefore, the court lacked jurisdiction of the subject-matter and since the question was one of jurisdiction, he was not bound by the decision of Mr. Justice Dore.

Prior to the closing of this 135-year old street in 1930 (pursuant to the resolution of 1929) the title to the bed of the street had only a nominal value. If it had been condemned before the street closing, there is no doubt that the award would have been the usual one dollar. The respondents claim that since chapter 752 of the Laws of 1923 refers to “ public streets ” once the street was closed that statute was rendered inapplicable; that thereupon the respondents became possessed of an unincum-bered fee simple; that if the fee can be condemned at all, compensation must be paid for it as unincumbered. This result, they argue, was brought about because the city first sought to obliterate the public easements of passage and thereafter sought to condemn the title to the bed of the street, whereas if the city had sought a like condemnation of the privately-owned title to the bed of the street at the same time as it sought to end the public easements, this proceeding would have been effectual and the damages awarded nominal. In other words, the contention is that the bed of the street, which to its owners would have been practically valueless if condemned prior or at the same time as the closing of the street, has become extremely valuable to them because the city, by reason of a mistake of fact, closed the street before condemning the title to its bed. Carrying this reasoning to its logical conclusion we would reach the absurd result that if a street closing proceeding and a condemnation proceeding were commenced independently and the street was closed a day before the hearing to determine the value of the bed of the street, the bed of the street would have become valuable, although, if the hearing had been held before the street was closed, the value would have been nominal. It cannot be that the Legislature intended that when the city unmistakably evinces an intention to acquire full title to a street it cannot do so pursuant to this statute (Laws of .1923, ch. 752) if perchance it passes a resolution obliterating the public easement of passage before it proceeds to condemn the private fee title and that, in addition, such a change in the order of procedure would greatly enhance the value of the fee title. To construe the statute as the respondents read it would exalt form over substance.

The orders appealed from should be reversed, without costs, and the matter remitted to the Special Term for action in accordance with this opinion.

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

Ordered accordingly.


author: Lehman, J.

text:
    In the Matter of the Accounting of Albert W. Pross et al., as Executors of Malky Lyons, Deceased. Albert W. Pross et al., as Executors of and Trustees under the Will of Malky Lyons, Deceased, et al., Appellants. Joseph G. Lyons, Respondent.

      (Submitted April 14, 1936;
    decided May 19, 1936.)

      Alexander Halpern, Charles H. Edwards and Albert W. Pross for Albert W. Pross et al., as executors of Malky Lyons, deceased, et ah, appellants.

      Frederick A. Keck, as special guardian, and Fred L. Gross for Sylvia D. Spiegel et al., infants, appellants.

      Jacob Landy and Bernard Cahn for respondent.
   Lehman, J.

The executors named in the will of Malky Lyons have filed their accounts and have asked for the construction of the residuary clause of that will. The attempted disposition of part of the residuary estate is patently invalid. The problem presented upon this appeal is whether such invalidity results in intestacy as to the entire residuary estate or affects only a portion thereof.

The testatrix at the time of her death had four children and each of these children had living issue. She directed that her residuary estate should be divided into four equal parts, and that one of such parts should be paid over to her son Nathaniel Lyons. She then directed that the trustees should hold in trust the other three shares or parts, to pay over the income of one of such shares to her son Lewis E. Lyons during his life; to pay over the income of another part to her daughter Annie L. Spiegel during her life, and to pay over the income of a third part to the two children of her son Joseph G. Lyons during each of their natural lives. As to the two shares of the residuary estate allotted to Lewis and Annie, the will provided that, upon the death of each of such children, his or her share should be divided in as many shares as he or she should leave children surviving and predeceased children leaving descendants; that the principal of one such share should be paid over to the descendants of each deceased child and the share of each surviving child should be invested and the income thereof applied to the use of such surviving child during his or her life, with remainder to his or her descendants or heirs at law.

The provisions of the will can be carried out without violation of any rule of law so far as concerns the share to be paid over to the son Nathaniel H. Lyons, and the share allotted to the two children of Joseph G. Lyons and their descendants. Invalidity inheres only in the attempted disposition of the two shares allotted to the other two children and their descendants after the death of the life beneficiaries. There the trust might continue during the life of a child not in being at the time of the death of the testatrix. The courts below have correctly held that the attempted creation of secondary life estates in two shares of the residuary estate of the testatrix after the termination of the primary life estates is invalid. To that extent, then, the testamentary scheme of the will cannot be carried out, and at least the remainder in two shares of the estate, after the death of the life beneficiaries, must pass as in case of intestacy to the four children of the testatrix.

We must endeavor to carry out as far as possible the intent of the testatrix. “ When it is possible .to cut out the invalid provisions, so as to leave intact the parts that are valid, and to preserve the general plan of the testator, such construction will be adopted as will prevent intestacy, either partial or total, as the case may be.” (Kalish v. Kalish, 166 N. Y. 368, 375.) Excision of a part of the testamentary disposition of an estate with consequent partial intestacy defeats to that extent the intent of the testator. Nevertheless “ if we can read into a will an intention to preserve any part of it, even with the illegal portions stricken out, the court will do so.” (Matter of Durand, 250 N. Y. 45, 53.) No rigid rule can be formulated by which the court can determine in each case whether excision of the invalid portions of a will will leave intact the general plan of the testator. Within the limitations imposed by law, a testator may choose the objects of his bounty and divide his estate among them as he sees fit. Excision of an invalid bequest to one child or descendant may result in injustice not intended by the testator, and in an inequitable division of the estate. It may so deform the general plan of division that the court is constrained to find that total intestacy would moré nearly carry out the testator’s intentions than partial intestacy. The courts will excise the invalid portions of a will and preserve the remainder where such excision does not pervert or deform beyond recognition the intention of the testator.

The Legislature may by statute create a general rule for the distribution of the property of a decedent in case of intestacy. The general rule so formulated cannot take into account the desires or intentions of a particular decedent. Such desires or intentions are ineffective unless expressed in a will properly executed and which conforms to the limitations placed by law upon the testamentary power of the decedent. The courts give effect to a testamentary intent so expressed; where there is no such expression of intent the decedent’s property must be distributed according to the general rule created by the Legislature.

A testator ordinarily takes into account the amount' of his entire property. He allots to each of the objects of his bounty the share which he deems equitable. Invalidity in an attempted gift to a person who would not, in case of intestacy, share in the distribution of the intestate’s property seldom, if ever, destroys the general plan of a will. It merely deprives such person of an intended benefit and increases the amount which the next of tin or the residuary legatees of the decedent will receive. The attempted gift then is severable from the remainder of the will. That remainder will be preserved, for no intent can be gathered from the will, read as a whole, that invalidity in one part shall render the whole will invalid.

The situation may be different when a testator attempts to divide his estate among his closest relatives. Where the will shows an intent to divide the property in substantially equal proportions among individuals or family branches, the failure of an attempted gift may create such unintended inequality that the courts may reasonably find, in the language of the will, an intent that invalidity in a part of such division renders invalid the entire division. In such case the testamentary intentions of the testator may be more nearly given effect by declaring total intestacy than by attempt to give effect to a maimed and distorted testamentary provision.

In this case the excision of the invalid parts of the residuary clause, and partial intestacy there, will leave intact the provisions which the testatrix intended to make for all her children. She intended to give to her son Nathaniel a one-quarter share of her estate. He will receive that. She intended to give to her son Joseph nothing, but to give one share to his two children and their descendants. They will receive that. She intended to give to her remaining son and daughter, each a life estate in one share. They will receive that. The intention of the testatrix will be defeated only in one respect. The descendants of the son and daughter who take only life estates will not receive the intended gift of remainders after the termination of those life estates. By such partial intestacy, each child will receive remainder interests in two shares of the estate which the testatrix did not intend for them but did intend for the descendants of two of the children.

The Surrogate held that in such case the will discloses no intention that the entire residuary clause should fail because of the invalidity of secondary estates intended for the benefit of the descendants of two of the children. We think that conclusion is correct. The testatrix doubtless intended an equal division of her estate among the four branches of her family represented by her four children, but it cannot reasonably be said that this intention was dominant over her intention that two children should have only fife estates with remainders to their descendants, and one child should receive nothing but that his descendants should take the share which in case of intestacy would go to him. The situation is far different from that present in such cases as Benedict v. Webb (98 N. Y. 460), where this court held that the preservation of a part of a will, in spite of invalidity in a related part, would produce “ such manifest injustice ” as to defeat the dominant intention of the testator.

It is significant that in this case the only child of the testatrix who appealed from the decision of the Surrogate is Joseph G. Lyons, who under the will of the testatrix did not share in the residuary estate. Neither he nor his children were affected by the invalidity of the secondary estates which the testatrix intended to create. Partial intestacy there produces no inequality against him or his branch of the family but total intestacy would result in defeating the intention of the testatrix that his children rather than he should receive a quarter share of the estate. The court cannot take seriously his claim that partial intestacy will produce manifest injustice ” and thus defeat the dominant testamentary purpose of the testator when the persons who suffer through such partial intestacy do not complain.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division to the appellants payable out of the estate.

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

Ordered accordingly.


text:
    In the Matter of Edgar H. Holden et al., Respondents. Theodore B. Hennenlotter et al., Appellants.

      (Argued April 13, 1936;
    decided May 19, 1936.)

      Matt Goldstein for Theodore B. Hennenlotter et al., appellants.

      Herman S. Bachrach and Clarence G. Bachrach for J. Charles Zimmerman, appellant.

      Arthur M. Laufer for respondents.
   Htjbbs, J.

In 1927 the city of New York acquired title in condemnation of land as a school site. Awards were made on two damage parcels known as damage parcels Nos. 6 and 6-A. The sum awarded for those damage parcels was deposited with the City Chamberlain pursuant to section 1439 of the Greater New York Charter (Laws of 1901, ch. 466, as added by L. 1915, ch. 596) to the credit of unknown owners. In January, 1929, Barbara C. Nelson commenced two separate proceedings in the Appellate Division, second department, for the collection of five-sixths of each award for the taking of damage parcels Nos. 6 and 6-A. Her petition alleged that she was the owner of a five-sixths interest in each award by virtue of assignments executed by heirs at law and next of kin of John Cullen, deceased, who was the owner of the property condemned. In that proceeding, testimony was taken by the corporation counsel and thereafter two separate orders were made and entered by the Appellate Division by the terms of which Barbara C. Nelson was granted five-sixths of the sum awarded for each of the damage parcels Nos. 6 and 6-A and the City Chamberlain was directed to pay the same. The Corporation Counsel consented to the form and entry of each order. Thereafter, the City Chamberlain, after deducting taxes, assessments, etc., paid to her $2,398.29 on account of damage parcel No. 6 and $2,499.25 on account of damage parcel No. 6-A.

On February 25th, 1929, Augusta A. Higgins, as assignee of one Burchard, commenced a proceeding in the Appellate Division based upon a tax certificate issued by the Collector of Assessments and Arrears of the city of New York, entitling the owner to a lease of damage parcel 6-A for 10,000 years. At the time of the commencement of the proceeding, there was on deposit with the City Chamberlain $656.29 to the credit of unknown owners of damage parcel 6-A. The matter was referred to an official referee who after a hearing reported that the petitioner was entitled to payment of the sum of $656.29, the balance on deposit to the credit of unknown owners of parcel 6-A. The report of the referee was confirmed and the City Chamberlain paid the money to the petitioner.

In November, 1934, over five years later, the present proceeding was instituted by notice of motion praying for an order vacating and setting aside the assignments made to Barbara C. Nelson; vacating and setting aside the orders of the Appellate Division directing payment of the awards to Barbara C. Nelson; vacating and setting aside the order directing payment of $656.29 to Augusta A. Higgins, and vacating and declaring null and void the tax certificate issued to Augusta A. Higgins. Also for an order directing all of the appellants to deposit in court the amount collected by Barbara C. Nelson and Augusta A. Higgins, with interest. The relief prayed for was granted by the Appellate Division on the ground that Barbara C. Nelson’s assignor had procured the assignments from the unknown owners by fraud and that Harry Holden who had an interest in the balance of $656.29 on deposit to the credit of unknown owners of parcel 6-A never received notice of the proceeding which resulted in an order directing that sum to be paid to Augusta A. Higgins. Also on the ground that the prior proceeding by Barbara C. Nelson to withdraw the funds constituted a fraud on the court as the assignments from the unknown owners were procured by fraud. The other parties named in the proceeding had obtained some interest in the funds and for that reason were made parties to the proceeding. It is unnecessary to recite their interest.

The principal question here involved is whether fraud practiced in securing the assignments from the unknown owners constituted fraud upon the court and justified the court in annulling the whole proceeding, canceling the assignments and directing the appellants to pay the amount which they received with interest into court.

The proceeding for the withdrawal of the money from the office of the Comptroller was in all respects regular. The Corporation Counsel had notice, took evidence and consented to the orders. The assignments were regular and properly executed. They transferred the legal title to the funds from the unknown owners to the assignee. When the assignments were presented to the Appellate Division they established the legal title of the assignee to the funds. It was not necessary to establish the consideration paid for the assignments.

In fact, the city could not have legally inquired into the consideration paid for the assignments, or the conditions under which they were executed. That was a matter of no importance to the city or any one else relying upon the assignments. The fact that the assignors might have a 'valid cause of action against the assignee because of fraud practiced upon them, did not affect the legal title of the assignee and could not be proved by a defendant in an action on the assignments. (Sheridan v. Mayor, 68 N. Y. 30; Spencer v. Standard C. & M. Corp., 237 N. Y. 479.)

When the Appellate Division made its orders directing the payment of the fund to the assignee, she had legally established that she was the legal owner of the fund by virtue of her assignments and the orders were properly made. The assignments were perfectly valid until legally set aside and declared void. The assignors, by their acts, had vested the legal title in their assignee. If they desired to question that title they might do so in an action against the assignee based on the ground of fraud. They could not obtain that relief and the other relief granted by motion.

In the case at bar the court referred the question whether there had been fraud in procuring the assignments to an official referee. It may be conceded that there was evidence of the fraud charged. The appellants did not offer any evidence but stood upon their legal rights insisting that the court was without power to compel them to litigate the question of fraud between the assignors and assignee in the manner attempted,

In this we believe they were acting within their legal rights. They had a right to have that issue determined in an action in the usual way and in that action they might be entitled to a jury trial. The alleged fraud which the court was investigating was not a fraud upon the court but a fraud between the original parties to the assignments.

A judgment may be vacated when procured by fraud on the court but not for fraud between the original parties in some remote transaction. To justify a court in setting aside and vacating a judgment on the ground of fraud, the fraud complained of must have been practiced in the very act of obtaining the judgment. (Mayor v. Brady, 115 N. Y. 599, 614.)

It is well settled in this jurisdiction that intrinsic fraud or perjury on a trial will not justify the vacating and setting aside a judgment. (Jacobowitz v. Herson, 268 N. Y. 130.)

Undoubtedly fraud practiced on the court in the very act of procuring a judgment or order will justify a court in vacating such judgment or order. (Cf. 34 C. J. p. 282, where many cases are cited illustrating the rule.)

Here there was no fraud on the court in procuring the order. The assignments were valid upon their face. The assignee was the legal owner of the claims assigned. No one could question the validity of the assignments except the assignors and that they might never do. The proceedings were in all respects regular. Under those circumstances, the court was without jurisdiction upon motion to vacate the order, cancel the assignments and order the amount received from the Comptroller to be paid into court thereby making the appellants subject to punishment for contempt of court in case they disobeyed the order.

The same principle applies to the order in the Higgins proceeding. In that proceeding, Augusta A. Higgins, the assignee of a tax certificate, procured an order of the Appellate Division requiring the Comptroller to pay to her the sum of $656.29, the balance on deposit to the credit of damage parcel No. 6-A. The Appellate Division has not only vacated its order but it has also canceled the tax certificate and directed the holder thereof, Augusta A. Higgins, to pay into court the sum of $656.29, with interest thereon. The Appellate Division was without power to make such an order.

The order appealed from should be reversed and the proceedings dismissed, with costs in all courts.

Crane, Ch. J., O’Brien, Crouch and Loughran, JJ., concur; Lehman and Finch, JJ., dissent on the ground that the order of the Appellate Division was not a judicial decision but only an administrative order.

Order reversed, etc.


text:
    The People of the State of New York ex rel. Ida W. Schick, Respondent, v. Rolland B. Marvin, as Mayor of the City of Syracuse, et al., Appellants.

      (Argued March 20, 1936;
    decided May 19, 1936.)

      James C. Tormey, Corporation Counsel (John F. Hmiel of counsel), for appellants.

      James F. Brazell, Frank J. Cregg, Jr., and Thomas J. Lowery for respondent.
   Lehman, J.

West Onondaga street in the city of Syracuse has been widened pursuant to an ordinance of the Common Council of the city. The petitioner owns property abutting on that'street. Part of this property was taken by the city for the public improvement, and an award has been made to the petitioner for the consequent damages. In proceedings for the widening of a contiguous section of the same street, the Common Council had determined that the entire cost should be borne by the city. Four years after the widening of the section of the street upon which the petitioner’s property abutted, the Council authorized the assessment of part of the cost of that section upon the property deemed to be benefited by the improvement. Accordingly, an assessment was levied upon the petitioner’s land. After the assessment was confirmed, the petitioner brought proceedings to vacate the assessment. The controversy was referred to a referee to hear and determine. Judgment was entered upon the report of the referee adjudging that the assessment upon the petitioner’s land “ be and the same hereby is, declared illegal and void and the same is adjudged to be set aside and cancelled of record.” The defendant attempted to appeal to the Appellate Division. The appeal was dismissed on the ground that the court was without jurisdiction to entertain it.

The Legislature has regulated the manner in which an assessment for local improvements in the city of Syracuse may be challenged and reviewed (Laws of 1906, ch. 75.) That statute is applicable to assessment for the widening of a street (Laws of 1914, ch. 300). The scope of the statutory provisions is wide, and at least insofar as these provisions afford an adequate remedy for illegality or error in the assessment, such statutory remedies must be deemed exclusive. (Oak Hill Country Club v. Town of Pittsford, 264 N. Y. 133.) Where the Legislature has provided a statutory remedy, it may limit or deny a right of appeal from an order for judgment entered in the statutory proceedings by the court upon which the statute has conferred jurisdiction. (Matter of De Camp, 151 N. Y. 557.) The Legislature has done so here, at least in regard to certain decisions. The problem presented upon this appeal is whether the statute denies a right of appeal from judgment of the court annulling and vacating the assessment which has been challenged by the petitioner.

The statute provides:

No action or proceeding to set aside, vacate, cancel, annul, review, reduce or otherwise question, test or affect the legality or validity of any assessment for a local improvement shall be maintained nor shall the legality or validity thereof be subject to question except in an action or proceeding brought for that purpose as herein provided. If in the proceedings relative to any such assessment entire absence of jurisdiction on the part of the common council to order the improvement on account of which the assessment was made or any fraud or substantial error, other than such errors or irregularities as are specified in the preceding section, are alleged to have existed or to have been committed, any party, or parties aggrieved thereby who shall have filed objections thereto within the time hereinbefore specified and limited therefor may apply to the supreme court, at any special term thereof held within the judicial district in which said city is situated, for an order vacating or modifying such assessment as to the lands in which he or they have an interest, upon the grounds in said objections specified, and no other, upon due notice of such application to the corporation counsel. Such court may proceed to hear the proofs and allegations of the parties and determine the same, or may appoint a referee to take the proof and report the same, or to hear, try and determine the same. If it shall be determined that there was total want of jurisdiction on the part of the common council to order the improvement on account of which the assessment was made the court may order such assessment as to such party or parties to be vacated. If it shall be determined that the common, council had jurisdiction to order the improvement and that any such fraud or error has been committed and that the party or parties applying for such relief has or have suffered substantial damage by reason thereof the court may order that said assessment be modified, as provided herein, as to such party or parties and as so modified it be confirmed. * * * An order so made in any such proceeding shall be entered in the clerk’s office of Onondaga county and shall have the same force and effect as a judgment. The court may during the pendency of any such proceeding stay the collection of any assessment involved therein as against the parties to such proceeding. Costs and disbursements of any such proceeding may be allowed in the discretion of the court. No appeal shall be allowed or taken from the order made in any such proceeding but the determination so made therein shall be final and conclusive upon all parties thereto.” (§ 34.)
No court shall cancel, annul or vacate such assessment on any property for any local improvement except for total want of jurisdiction on the part of the common council to order the improvement on account of which the assessment was made nor to modify any such assessment otherwise than to reduce it to the extent that the same may be shown by parties complaining thereof to have been in fact increased in dollars and cents by reason of fraud or substantial error. In no event shall that proportion of ary such assessment which is the equivalent of the fair value or fair cost of any local improvement, with interest at the rate of five per centum per annum from the date of the delivery of the assessm nt roll therefor to the city treasurer to the date of the final order of modification and twelve per centum thereafter, be disturbed for any cause. The provisions of this section shall apply to actions to recover money paid for assessments, and the amount recovered shall be limited to the excess over the fair value or fair cost of the improvement.” (§ 35.)

At the outset it must be noted that though the first sentence of section 34 in broad language precludes a challenge of the validity or legality of any assessment except in an action or proceeding * * * as herein •provided,” yet in its subsequent sentences the section refers to proceedings in which the court is limited to the making of particular orders and upon allegation and proof of particular grounds of invalidity in an assessment. We are concerned now primarily with such proceedings. We may not upon this appeal consider whether the Supreme Court had power, statutory or inherent, to grant a judgment annulling the assessment upon the grounds alleged or established by the petition or whether the judgment is otherwise correct. The only question before us is whether the judgment may, by appeal, be brought before the Appellate Division for review.

Regulation of the manner and form of a challenge of the validity and legality of an assessment is coupled in the statute with limitation upon the power of the court to interfere with such assessment. There the language of the statute is clear and unambiguous. No order vacating an assessment may issue unless it shall be determined that there was “ total want of jurisdiction on the part of the common council to order the improvement on account of which the assessment was made;” and only where it is determined that the Common Council did have such jurisdiction, but that fraud or error was committed, may the court order that the assessment be modified by reduction “ to the extent that the same may be shown by parties complaining thereof to have been in fact increased in dollars and cents by reason of fraud or substantial error.” Though the statute provides that no appeal shall be allowed or taken from the order made in any such proceeding but the determination so made therein shall be final and conclusive upon all narties thereto,” finality, it is clear, was intended to attach, only to an order authorized by the statute and made in the proceedings described in the statute; i. e., an order granting or denying an application to vacate an assessment in proceedings where it has been determined that there was total want of jurisdiction on the part of the common council to order the improvement,” or an order granting or denying an application to reduce the assessment in proceedings where it has been determined that fraud or error has been committed. (Cf. Matter of De Camp, supra.)

In this case there is neither allegation nor proof that there was want of jurisdiction on the part of the Common Council to order the improvement. That jurisdiction remains unchallenged, and so long as it remains unchallenged, no order to vacate the assessment may be made in accordance with the provisions of section 34 of the statute. The assessment has been vacated and set aside solely upon allegations and determination that the legislative act of the Common Council in authorizing the assessment constituted an unjust discrimination against the petitioner, since no assessment had been made against property which had been benefited by the widening of another section of the same street, and that the city is estopped from enforcing the assessment because the city delayed too long in enforcing it. There is no claim or finding of fraud or mistake on the part of the administrative officers of the city in making the assessment. The attack is directed solely against the validity of the legislative action of the Common Council. The court has determined that thé assessment is invalid because the Common Council transcended its legislative powers by action which was discriminatory and inequitable. The statute does not provide for any proceedings to set aside and vacate an assessment upon such grounds. Indeed, it prohibits the making of such an order, and the only order from which no appeal may be taken is an order made in accordance with the statute in proceedings regulated by the statute.

It is true that if the Common Council of the city exceeded its authority by directing that the assessment be made, the assessment itself is void. The Legislature may make reasonable regulations for the manner in which a void assessment may be questioned; but legislative regulation of proceedings brought for such purpose may not be so construed as to deprive a party aggrieved by a void assessment of all right to challenge it in any legal proceeding. Whether in spite of statutory limitations upon the power of the court to make an order vacating an assessment which is void for reasons other than total want of jurisdiction on the part of the Common Council to order the improvement, the court might still vacate the assessment in this case, is a matter on which the Appellate Division must pass upon the appeal from the order or judgment vacating the assessment. All that we now decide is that the provision of the statute that no appeal may be taken from an order described and authorized by the statute has no application to an order not so described or authorized.

Doubtless the Legislature intended to provide a speedy method for the final determination of all questions concerning the validity of an assessment, and to preclude challenge of such validity, except upon substantial grounds. To that end were directed the provisions of the statute that unsubstantial irregularities should not affect the validity of the assessment; that fraud and error should invalidate the assessment only to the extent that the amount of the assessment had been increased thereby; that no assessment should be vacated except for total want of jurisdiction on the part of the Common Council to order the assessment, and that no appeal should be taken from orders made in proceedings brought to modify or vacate an assessment accordingly. Perhaps the Legislature supposed that few if any cases outside of the scope of these provisions would arise where challenge on other grounds could be justified. Argument is made that the words “ fraud or error ” are sufficiently broad to include invalidity of the legislative action by the Common Council; that where such “ error ” exists, the property owner is damaged thereby to the full extent of the assessment, and that in such case the assessment may be completely set aside. Such construction does not accord with the language of the statute, and there is nothing to show that the Legislature had such intent. Indeed, such construction would thwart the plain intent of the Legislature to limit the power of the court to modify or vacate an assessment except in manner set forth in the statute.

We conclude that an appeal may be taken from the judgment entered upon the report of the referee; and that the order dismissing the appeal should be reversed and the proceedings remitted to the Appellate Division to act in accordance with this opinion. The question certified is not answered.

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

Ordered accordingly.


author: Hubbs, J. O’Brien, J.

text:
    Ralph Woernley, Respondent, v. Electromatic Typewriters, Inc., Appellant.

      (Argued April 14, 1936;
    decided May 19, 1936.)

      Stephen V. Lines for appellant.

      William L. Clay for respondent.
   Hubbs, J.

This is an action to recover damages for personal injuries suffered by the plaintiff. The Special Term, on motion of the defendant, made an order that the testimony of a physician, engaged in a sanatorium where plaintiff was treated, should be taken before a referee concerning all the facts relating to plaintiff’s physical condition while he was a patient at the sanatorium, and concerning any diseases or injury of which the physician had knowledge, acquired while the plaintiff was a patient there and which existed prior to the commencement of the action. The order was based upon section 354 of the Civil Practice Act, which reads, in part: “ * * * In an action for the recovery of damages for a personal injury the testimony of a physician or surgeon, or of a professional or registered nurse attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary or other charitable institution, shall be taken before a referee appointed by a judge of the court in which such action is pending; provided, however, that any judge of such court at any time in his discretion, notwithstanding such deposition, may order that a subpoena issue for the attendance and examination of such physician or surgeon or professional or registered nurse, upon the trial of the action. In such case a copy of the order shall be served together with the subpoena. The provisions of this act and rules relating to depositions of witness taken and to be used within the state apply to the examination of a physician or surgeon or a professional or registered nurse, as prescribed in this section. The waivers herein provided for must be made in open court, on the trial of the action or proceeding, and a paper executed by a party prior to the trial providing for such waiver shall be insufficient as such a waiver. But the attorneys for the respective parties, prior to the trial, may stipulate for such waiver, and the same shall be sufficient therefor.”

The Appellate Division modified the order of Special Term by striking out that part which directed the examination of the physician, and that court certified the question: “ On this record did the court at Special Term have the power to order the examination of Doctor Bridge?

For over a hundred years it has been the law in this State that a physician should not be allowed to disclose any information which he acquired in attending a patient in a professional capacity. (2 It. S. [1st ed., 1829] p. 406, § 73; Code Civ. Proc. § 834; Civ. Prac. Act, § 352.)

Its purpose [Civ. Prac. Act, § 352] is to protect those who are required to consult physicians from the disclosure of secrets imparted to them; to protect the relationship of patient and physician and to prevent physicians from disclosing information which might result in humiliation, embarrassment or .disgrace to patients.” (Steinberg v. New York Life Ins. Co., 263 N. Y. 45, 48.)

The order here in question expressly provides that the physician to be examined before a referee shall disclose on such examination the facts which section 352 of the Civil Practice Act provides shall not be disclosed by a physician. Section 354 of the Civil Practice Act was never intended to abrogate the provisions of section 352. The enactment of section 352 and the prior statutes covering the same subject apply to disclosures before a referee the same as to disclosures upon a trial in court.

The Legislature has guarded against the violation of section 352 by providing that its protection can only be waived in open court, on the trial of the action or proceeding.”

Section 354 permitting the examination of hospital physicians before a referee was undoubtedly enacted to protect physicians and the institutions where they are engaged from the annoyance of being compelled to attend trials as witnesses. The section extends to them a privilege because of the nature of their services which is not extended to others.

The order of the Appellate Division should be affirmed, with costs, and as applied to the order here io. question the certified question should be answered in the negative.

O’Brien, J.

(dissenting). The only question is whether on this record the Special Term had power to order the examination of a physician attached to a sanatorium where plaintiff in this action for the recovery of damages for a personal injury was treated. The justice at Special Term and the dissenting justices at the Appellate Division (246 App. Div. 675) were of the opinion that such power exists by virtue of the provisions of section 354 of the Civil Practice Act and I agree with them. That section is entitled “ Application of sections relating to confidential communications,” and provides in part: “ * * * In. an action for the recovery of damages for a personal injury the testimony of a physician or surgeon, or of a professional or registered nurse attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary or other charitable institution, shall be taken before a referee appointed by a judge of the court in which such action is pending; provided, however, that any judge of such court at any time in his discretion, notwithstanding such deposition, may order that a subpcena issue for the attendance and examination of such physician or surgeon or professional or registered nurse, upon the trial of the action. In such a case a copy of the order shall be served together with the subpcena. The provisions of this act and rules relating to depositions of witness taken and to be used within the state apply to the examination of a physician or surgeon or a professional or registered nurse, as prescribed in this section. The waivers herein provided for must be made in open court, on the trial of the action or proceeding * *

This language is mandatory in form and appears to be sufficient not only to authorize but also to require the taking before trial of the testimony of a physician attached to a hospital. The words should be given their ordinary meaning. This section was enacted as an exception to the general rule embodied in section 352 of the Civil Practice Act and for the convenience of members of hospital staffs as well as to provide a body of evidence which the patient, as plaintiff in a personal injury action, can, if he desires, produce on the trial. Such testimony cannot be introduced by the adverse party on the trial unless the patient expressly waives in open court his right to object to disclosure on the ground of privilege or opens the door by production of this testimony or other medical evidence on the subject. (Civ. Prac. Act, § 352; People v. Bloom, 193 N. Y. 1; Rudolph v. John Hancock Mut. L, Ins. Co., 251 N. Y. 208; Steinberg v. N. Y. L. Ins. Co., 263 N. Y. 45, 51, 52.) Neither party has the right under this section to subpoena the physician but, in addition to ordering the taking of testimony before a referee, the judge may, in his discretion, order the issue of a subpoena for that purpose. The mandatory “ shall,” as applied to the examination, and the permissive “ may,” as applied to the issue of the subpoena, are used in emphatic contrast in the same section of the statute.

Crane, Ch. J., Lehman, Crouch, Loughran and Finch, JJ., concur; O’Brien, J., dissents in opinion. Ordered affirmed, etc.


text:
    Globe Indemnity Company, Appellant, v. Atlantic Lighterage Corporation, Respondent.
    (Argued April 17, 1936;
    decided May 19, 1936.)

      F. A. W. Ireland for appellant.

      Samuel E. Swiggett and Alfred W. Andrews for respondent.
   Finch, J.

An employee of the International Elevating Company sustained injuries in the course of his employment claiming negligence on the part of the defendant, the Atlantic Lighterage Corporation. Pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act (44 U. S. Stat. 1424) an award was made in favor of the employee against the International Elevating Company. The plaintiff, the Globe Indemnity Company, which had insured the International Elevating Company, paid the award. The plaintiff then, claiming to be subrogated to the cause of action against the defendant, instituted this action to recover damages for the personal injury to the employee resulting from the negligence of the defendant. Two causes of action were set forth in the complaint. The Special Term granted a motion to dismiss the second cause of action but refused to dismiss the first cause. On appeal by the defendant to the Appellate Division the first cause also was dismissed.

The Longshoremen’s and Harbor Workers’ Compensation Act provides that the acceptance of compensation by an employee shall operate as an assignment to the employer of all rights of the employee to recover damages against third persons. (§ 33, subd. b.) It further provides that an employer shall retain out of any amount received on account of such assignment all sums paid as compensation, the present value of all amounts payable as compensation, the cost of all benefits furnished the employee and all expenses incurred in connection with the proceedings; and that the “ employer shall pay any excess to the person entitled to compensation or to the representative.” (§ 33, subd. e-2.)

The Federal statute, unlike the New York Workmen’s Compensation Law (Cons. Laws, ch. 67, § 29), does not provide that the award operates as an assignment to the insurer of the cause of action of the injured employee against third persons, but as noted confines it to the employer. The United States Supreme Court has held that where an insurer under the Federal act has paid an award it has a right to share in the recovery obtained in an action by the employer against the third party. (Ætna Life Ins. Co. v. Moses, 287 U. S. 530.) The holding is clear that the insurer alone may not bring an action against the third party. The insurer’s right of subrogation does not alter the fact that it is the employer who is directed by the statute to distribute the proceeds of the recovery, in which the insurer has only a partial interest. Accordingly, the employer is the party to bring the action and the only necessary party plaintiff in the ease before us.” (Ætna Life Ins. Co. v. Moses, supra, at p. 542.)

In Doleman v. Levine (295 U. S. 221) an employee was killed as the result of negligence of a third party and left surviving a widow and a dependent father entitled to compensation. The widow elected to receive compensation from the employer but the father declined compensation and brought suit against the third party. It was held that the father could maintain the suit and, therefore, that the employer, although he had paid an award to the widow, could not split the cause of action and sue the third party. Mr. Justice Stone, writing for an unanimous court, pointed out that:

The right of the employer to reimbursement from the recovery is derived from his subrogation, under § 33 (b) of the Compensation Act, to the rights of the dependent widow to whom he is bound to pay compensation. Apart from statute, the indemnitor’s right by subrogation to stand in the place of his indemnitee, who is entitled to a part only of the proceeds of a single cause of action, does not carry with it any authority to maintain the action in his own name. See Mandeville v. Welch, 5 Wheat. 277, 286; Shanhland v. Washington, 5 Pet. 390; Vinal v. West Virginia Oil & Oil Land Co., 110 U. S. 215. He is in the position of a partial assignee of the chose in action, and as such is entitled to his share of the proceeds of the action when recovered and may secure their recovery by resort to equity, in a suit joining proper parties, to compel action by the legal owner and appropriate distribution of the proceeds. See Peugh v. Porter, 112 U. S. 737, 742; Fourth Street Bank v. Yardley, 165 U. S. 634, 644; Ætna Life Insurance Co. v. Moses, supra, 542, n. 3 ” (p. 225).

~ ■“ The section does not purport to split the cause of action. A purpose to do violence to the firmly grounded tradition of the unity of a cause of action at law, by casting on the defendant the burden of defending two suits, is hardly to be implied ” (p. 226).

The position of the insurance company in the case at bar is no better than that of the employer in the case of Doleman v. Levine (supra). The statutory provision provides for the subrogation of the employer, not the insurance company. If the courts should hold that the insurance company likewise was subrogated so that it could maintain the action alone it could recover only to the extent that it had indemnified the employer, and as the cause of action could not be split (Doleman v. Levine, supra), no other suit could be brought with the result that the provisions of the statute giving this right of subrogation in the first instance to the employer would be defeated, if the insurer first brought suit. The employer has a right to recover not only the amount awarded to the claimant but the entire damages, paying the “ excess ” to the injured employee. .A determination that the insurance company could maintain the action although the employer was not a party thereto would necessitate a holding that there could be a division of the cause of action and the bringing of two separate suits against the third party. This court has held that a cause of action to recover damages for personal injuries cannot be split up. (United States F. & G. Co. v. Graham & Norton Co., 254 N. Y. 50. See General A. F. & L. Assurance Corp. v. Zerbe Construction Co., 269 N. Y. 227, 231.)

The insurance company can demand that the employer bring the action to which he is subrogated and if he refuses it may bring such action making the employer a party thereto. The insurance company cannot be deprived of its right of subrogation to the extent that it has paid the award. The court will afford this relief when the employer is brought into the action.

The judgment of the Appellate Division should be affirmed, with costs.

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

Judgment affirmed.


author: Ceouch, J.

text:
    H. E. & S. Transportation Corporation, Respondent, v. Checker Cab Sales Corporation, Appellant.
    (Argued April 22, 1936;
    decided May 19, 1936.)

      Emil Weiizner, Samuel H. Kaufman and David G. Haskins for appellant.

      Aloysius F. Power, George A. Brooks and John Thomas Smith for Yellow Manufacturing Credit Corporation et al., amici curiee.

      Isidore Rose for respondent.
   Ceouch, J.

The action was brought under section 80-e of the Personal Property Law (Cons. Laws, ch. 41) to recover one-fourth of the amount paid to the defendant on account of the purchase price of certain taxicabs. The taxicabs were retaken by the seller on May 17, 1933. Notice of sale was given to the buyer on May 18th. The sale was had on May 29th, the day stated in the notice. May 28th was a Sunday. The complaint alleged shortage (1) in the ten-day redemption period granted to the buyer by Personal Property Law, section 78; and (2) in the ten days’ written notice of sale period required by Personal Property Law, section 79.

1. It is clear that there was no shortage in the redemption period. Under section 78 the specified event is the retaking.” The retaking was on May 17th. That is the day from which the reckoning is made. Hence, it is excluded in making the reckoning. So excluded, the specified period expired at midnight on May 27th. (General Construction Law [Cons. Laws, ch. 22], §§ 19 and 20.)

2. The pertinent language of section 79, relating to notice of sale, is as follows: “ The seller shall give to the buyer not less than ten days’ written notice of the sale * * Down to 1892, when the mode of computing days was embodied in section 27 of the Statutory Construction Law (Laws of 1892, ch. 677, now Cons. Laws, ch. 22, § 20), the general rule was, as stated in Kane v. City of Brooklyn (114 N. Y. 586, 594), to exclude the first day and to include the last.” The Statutory Construction Law disclosed “ no intention on the part of the Legislature to materially change the existing rule for the computation of time, except, perhaps, to more definitely fix the event from which the count is tp be made.” (People v. Burgess, 153 N. Y. 561, 573.) The statutes construed in both the Kane and Burgess cases used the not less than ” phrase which is used here. Nevertheless, the general rule of computation which excludes one of the terminal days was followed. It is true that courts in other jurisdictions have found in the phrases not less than ” and at least” an indication that the specified number of days should be full clear days, excluding both the day of the act and the day of the event. (See 62 C. J. 985, § 32.) No good reason is suggested why the rule of construction long ago established by this court and since followed (Cf. Jones v. Wallace, 75 App. Div. 401; Strickland v. Hare & Chase, Incorporated, 217 App. Div. 196) should be varied when applied to substantially the same language. The event specified in section 79, notice of which is required to be given, is the sale. The day of that event was May 29th. Excluding that day from the reckoning and including May 18th, the day when the notice was given (Cf. People v. Burgess, supra), we have a period of eleven days, of which Sunday was the last. That fact is a matter of no importance here, since Sunday is excluded only when it is the last day of any specified period.

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

Crane, Ch. J., Lehman, O’Brien, Hubbs, Lougi-iran and Finch, JJ., concur.

Judgments reversed, etc.


author: Crouch, J.

text:
    The City of New York, Appellant and Respondent, v. Isaac T. Flatto et al., Appellants, and Kittanning Sales Company, Inc., Respondent and Appellant.
    (Argued April 23, 1936;
    decided May 19, 1936.)

      Paul Windels, Corporation Counsel (Edmund L. Pal-mieri and Paxton Blair of counsel), for plaintiff, appellant and respondent.

      James E. Duross for defendant Kittanning Sales Company, Inc., respondent and appellant.

      Isaac T. Flatto, in person, Albert E. Hart and Thomas E. White for defendants Isaac T. Flatto et al., appellants.
   Crouch, J.

In August, 1928, the defendant Flatto was the owner of two parcels of upland on the Harlem river to which were appurtenant certain riparian rights. On September 18, 1928, the plaintiff leased to Flatto adjoining lands under the river water for a term of years in consideration of a stated rent and the release to the plaintiff by Flatto of his riparian rights. The defendant Fidelity and Deposit Company of Maryland became surety for Flatto and his assigns on a bond to secure the payment of the rent. On September 20, 1928, in fulfillment of a contract between them, Flatto deeded the upland and assigned the lease to the defendant Kittanning Sales Company, Inc. Flatto, as lessee, had covenanted in the lease not to assign it without the consent in writing of the Commissioner of Docks and the approval thereof by the Board of Commissioners of the Sinking Fund. Having closed the deal with the Kittanning Company, on the representation that he could and would procure the necessary consent and approval, Flatto took steps to that end. He notified the Commissioner of Docks of the assignment and requested him to consent and to obtain the necessary approval. The Commissioner, after a passing reference to a technical violation of the lease because the consent had not been first obtained, asked for and was furnished information showing the financial standing of the assignee. Satisfied on that point, the Commissioner communicated in writing to the Sinking Fund Commission his recommendation for the approval of the assignment to the Kittanning Company. The matter was referred to the Comptroller, who thereafter reported back favorably to the Commission. Thereupon, under date of January 23, 1929, the Commission by resolution approved the assignment, subject to the consent to the assignment by the surety on the rent bond and the approval by the Corporation Counsel of the form of assignment. Approval of the form was given. The consent of the surety was not. But neither was it refused. The matter seems merely to ha ve been overlooked. It was of no particular importance, since, by the condition of the bond itself, the surety, in case of default either by Flatto or his assigns, was bound. The Kittanning Company paid and the plaintiff received and gave receipts for the rental down to December 1, 1929, after which no payments were made. For a year thereafter the plaintiff pursued the Kittanning Company and Flatto for the past due rent and finally brought this action to recover it.

The trial court gave judgment against all the defendants for the amount due, with judgment over to Flatto against the Kittanning Company. All other issues arising under the various pleadings were dismissed. The Appellate Division reversed so much of the judgment as ran against the Kittanning Company and otherwise affirmed.

The view taken by the Appellate Division was that the assignment of the lease to the Kittanning Company was not an absolute assignment, but was upon the condition that the consent of the plaintiff thereto be obtained; and that such condition had not been met. With that view we disagree. Even if we accept the theory of conditional assignment, the bare outline of the facts stated above shows a substantial performance of the condition and a recognition of such performance both by the city and by the Kittanning Company. The consent in writing by the Commissioner of Docks, after approval of the assignment by the Sinking Fund Commission, was a formality which the plaintiff could and did disregard, in view of the fact that the Commission acted on the written recommendation of the Commissioner of Docks. So, also, as to the consent of the surety, for the reason stated above. The plaintiff, except for one slight lapse, has consistently sought to hold the Kittanning Company hable as assignee. It is even now, as appellant here, urging error in the contrary holding by the Appellate Division. In effect, it both admits and asserts that it gave its consent to the assignment, disregarding, as it had the right to do, mere irregularities. It is idle for the Kittanning Company to assert the contrary.

The contention of the defendant Flatto, that the assignment of the lease was in fact and in law a surrender thereof, with consequent release of all liability, is untenable. So far as the question is one of fact, it is not open here. That the legal and beneficial ownership of the leasehold necessarily follows the ownership of the upland (if that be so in a case where the riparian rights have been extinguished) does not affect his engagement as original lessee to pay rent. To that extent at least the settled law is applicable. (Gillette Bros., Inc., v. Aristocrat Restaurant, Inc., 239 N. Y. 87; Halbe v. Adams, 172 App. Div. 186.)

The judgment should be affirmed, with costs, so far as it affirmed the judgment of the trial court, and reversed, with costs, so far as it affected the judgment of the trial court against Kittanning Company in favor of the plaintiff and of the defendant Flatto. (See 271 N. Y. 662.)

Crane, Ch. J., Lehman, O’Brien, Htibbs, Lottghran and Finch, JJ., concur.

Judgment accordingly.


author: Loughran, J.

text:
    Mamie Lessig, as Administratrix of the Estate of Benjamin Lessig, Deceased, Appellant, v. The New York Central Railroad Company, Respondent.
    (Argued April 21, 1936;
    decided May 20, 1936.)

      Jay Leo Rothschild, Robert H. Kilroe and Samuel H. Ilenis for appellant.

      Kenneth 0. Mott-Smith and Clive C. Handy for respondent.
   Loughran, J.

Plaintiff’s intestate, in the course of his employment by United Flour Trucking Company, Inc., was removing bags of flour from a yard of the defendant railroad to the nearby warehouse of his employer. He was pushing a hand truck across a steel runway that connected two freight cars of the defendant standing on parallel railroad tracks. One of the cars moved, the runway went at a zigzag,” the intestate lost his balance and, falling upon a third rail, was electrocuted. In this action to recover damages for his death, a verdict for the plaintiff was set aside and the complaint dismissed. We think the case was for the jury.

It was stipulated that the tracks and the third rail were maintained, operated and controlled ” by the defendant and that the freight cars had been placed by its employees. If credited, plaintiff’s proof excluded the inference that any activity of fellow-servants of the intestate was a factor in the occurrence. The freight car moved only a few feet. No other car moved on either track. The sole evidence for the defendant was the stipulation: That each of the cars * * * was equipped with automatic air brakes and with mechanical brakes which were set by hand. That chocks were used to block said cars; that said chocks are pieces of wood to be placed on the rails under the wheels of the cars.” As interpreted by the parties, this concession was evidence of no more than a practice of the defendant, for the jury were told, without exception, that there was no testimony that the defendant •had braked ” the cars, and that what it did that morning, we do not know.”

Defendant’s contention is that the probability that its negligence caused the accident could not reasonably have been appraised as greater than the probability that the cause was a latent defect in its equipment or was the unlawful act of some unknown person. We think the defendant should not succeed in that argument here, it having failed to offer evidence as to whether the freight cars had been secured in any way.

The entire apparatus was owned by the defendant. It had the sole right of management. The case is, therefore, one in which the agency which has produced an injury is within the exclusive possession, control and oversight of the person charged with negligence whence, legitimately, flows the inference that if there is any explanation of the accident consistent with freedom from negligence, he ought to be able to give that explanation, and if he does not give it, a presumption arises against him.” (Slater v. Barnes, 241 N. Y. 284, 287.) The applicable doctrine has recently been fully examined in this court. (See Galbraith v. Busch, 267 N. Y. 230; Tortora v. State of New York, 269 N. Y. 167; Bressler v. New York Rapid Transit Corp., 270 N. Y. 409.)

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


author: Hubbs, J.

text:
    The People of the State of New York, Respondent, v. John Collins, Appellant.

      (Argued April 27, 1936;
    decided May 26, 1936.)

      Mordecai Konowitz, Albert E. Short and John T. Clancy for appellant.

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for respondent.
   Hubbs, J.

Appellant has been convicted of murder, effected while engaged in the commission of a felony.

Appellant was indicted together with Fred Majdan, and it is alleged that the defendants, each aiding and assisting the other, committed the crime. The jury disagreed as to the defendant Majdan.

_ The crime was committed on June 22, 1935. At about one o’clock in the morning six persons were in Klem’s Tavern in Winfield, Queens county. The owner Klem was standing behind the bar at the end farthest from the entrance. Sitting on a stool at the bar was a patron named Sullivan. At a uable at the right of the bar as one entered, the deceased Charles Theuner sat with three other persons. The deceased faced the door of the tavern, McConville had his back to the door and was facing Klem, Gartmeyer faced the bar, and Krevohlavy had his back to the door.

Three men entered the tavern, drew guns and said, “ Stick them up.” McConville turned in his chair, saw a gun in the hand of one and made a lunge for it. He seized the hand of the gunman. The gun was discharged and a bullet passed through his buttocks. Two other shots were fired, although it does not appear which one of the gunmen fired these shots. McConville fell to the floor. Theuner was struck by a bullet and died as a result of it. The three men escaped. They were on the premises only a little over a minute.

On July 11th appellant and three other men were apprehended by the police while riding together in an automobile. The codefendant Majdan was one of the passengers. Another passenger was a man named Burns. When arrested, appellant gave a false name.

Of the five men present with deceased on the night of the shooting only two could identify the defendant-appellant. All were produced upon the trial. Sullivan did not see what happened. He did not hear the gunmen enter. Krevohlavy said that he was drunk and saw nothing. Gartmeyer identified Majdan as one of the assailants, but could not identify the appellant. McCon-ville identified appellant as the man with whom he had the encounter. Klem, the proprietor, likewise made a positive identification of appellant. There was no confession by appellant and no other evidence to connect him with the crime. He offered no evidence but rested upon the People’s case.

The two witnesses who, at the trial, pointed out appellant as the man who entered with the gun were positive in their identification, but in their description of the clothes he wore, etc., they were at variance. Appellant argues that in view of this, the identification was so doubtful, contradictory and improbable that justice requires a reversal and a new trial.

The witness Gartmeyer was taken to the morgue and he there identified a body as that of one of the assailants. It developed that this was the man Burns, who had been in the car with appellant when he was arrested. Appellant argues that this was reversible error. Burns was not mentioned in the indictment. In fact, only appellant and Majdan were named therein.

Closely related to this point, appellant urges that the error was aggravated by allowing a police officer to testify that Burns had committed suicide after he was apprehended. The trial judge ordered this evidence stricken out when it appeared that the officer had no personal knowledge of the fact. When objection was made to the evidence as to how Burns met his death the court said: “ I will allow the People to show before this jury why, if such evidence is available, the third person who was said to have been at the scene of the homicide, is not here now.” It is conceded that the People could properly show that he was dead, but appellant objected to any proof as to how he met his death. It is argued that proof that Burns committed suicide probably called for the inference that he was guilty of this crime and committed suicide to escape trial. He was identified as one of the robbers, and, being then in the company of appellant, that fact, it is argued, strengthened the case against appellant.

There was no proof as to which of the three men fired the shot which killed Theuner. Only Majdan and appellant were named in the indictment. The indictment charges that each defendant, aiding and assisting the other, committed the crime. Appellant urges that since the indictment named only the two, the proof should show that the bullet was fired by one of them. This point has been decided adversely to this contention in People v. Scarnici (266 N. Y. 401).

Appellant contends that there was no proof of an independent felony; that the only evidence was that the three men entered and said, Stick them up; ” that these men may have come to kill one of those present and not to rob. We do not believe that there is any substance in that claim.

It is urged that it was error for the court to omit, in its charge, to define conspiracy and intent to commit a crime. The court charged every request made by the defendant’s counsel and, at the request of counsel, explained the essential elements of the crime of attempted robbery, and therein repeatedly used the word intent.” There is no claim here that the murder was not committed exactly as testified to by the People’s witnesses.

As no witnesses were called by appellant, the sole question was the question of identification. The witness McConville was seated at a table near the door when the gunmen came in. He heard the words, “ Stick them up.” He turned slightly in his chair and saw a man with a gun. The man was looking directly at the proprietor oi the restaurant, Klem, who was standing behind the bar. He made a lurch toward that gunman in an attempt to get his gun. The man with the gun was only six or eight feet away from him. He testified positively that that man was the appellant Collins. He said that he only saw one of the men, meaning that his attention was fastened upon that one man. He had previously identified him at the jail. On his cross-examination he volunteered the statement, “ I will never forget his face.” He testified that he was in full view; that he looked him in the eye, and that he looked at his face; that he was talking to him face to face. It is true that this witness described his wearing apparel and some minor details contradictory to the description given by other witnesses. The whole affair transpired in a very short space of time. Under the conditions it is not surprising that the various witnesses contradicted each other as to minor details. It is hard to see how there could be a more positive identification than that afforded by the evidence of this witness.

The proprietor Klem also identified the appellant. He was standing behind the bar when the gunmen came into the place. He testified: “He said 'stick them up.’ I wanted not to make a move. He pointed towards me, so I didn’t loose my eyes off him a minute * * * I was paying attention to him —he measured for me * * * I was watching his guns * * * I was looking in his face and guns * * * I see him now yet.” The witness was positive that the appellant Collins was the man he referred to. Those two witnesses were the only -witnesses who identified the appellant. Their testimony constituted a clear and positive identification. The fact that the witnesses differed as to minor details is of little weight or importance. Each of these men had his gaze centered upon the face of the appellant. One of them said he never would forget how he looked. The other said, “ I can see him now.” Certainly the testimony presented a clear question of fact for the jury and justified it in finding beyond a reasonable doubt that the appellant was one of the gunmen.

The witness Britton was called by the defendant Maj-dan. He testified that he lived across the street from the restaurant; that he saw an automobile stop in front of the restaurant and three men get out and go in; that he heard three shots and then saw three men back out of the door; that at the time he was within ten feet of them, and he testified that neither of the defendants was there. He said that he had a good view of the three gunmen because of the light from the sign in front of the restaurant. The proprietor of the restaurant was called in rebuttal and testified that at the time of the hold-up there was no light in front of the restaurant; that the light there at the time of the trial was placed there after the murder. Detective Schlegel, who had a conversation with the witness Britton on the night of the murder, was called on rebuttal. He testified: “I asked Mr. Britton what he saw and what he heard and Mr. Britton said that he was going into his house about one a. m. when he heard three shots.” He also testified that Britton told him on that occasion that he was going into his house about 125 or 150 feet away when he heard the shots, If the jury believed the evidence of the detective, then the statements of the witness Britton as to standing near the door of the restaurant and seeing the three gunmen retreat were directly in conflict with what he told the detective immediately after the happening of the hold-up. It also appeared that the witness Britton was near sighted and wore glasses in the court room and put them on when he looked at the defendants for the purpose of stating whether or not they were present on the occasion testified to. Under the circumstances the jury would have had the right to disregard the evidence of the witness Britton.

The question then is whether under this state of the record the evidence to the effect that Burns committed suicide constituted such error as to require a reversal of the judgment. We do not believe it does. Undoubtedly the People had the right, and in fact it was the duty of the District Attorney, to account for the absence of the third gunman. It was perfectly proper to show that he was dead. When the appellant was arrested, he and the co-defendant and Burns were in an automobile together. The appellant gave a false name. The fact that the three were together in the automobile, operating it in violation of law under a license issued in the name of another person, would have suggested to the jury that he was one of the three gunmen. In addition to that, one of the witnesses testified that he went to the morgue and looked at the remains and was able to say that Burns was one of the three gunmen. Of course the argument that the evidence of suicide carried the implication that he was guilty of participating in the hold-up remains, but in our judgment it is not of sufficient weight to justify a reversal.

The judgment of conviction should be affirmed.

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

Judgment of conviction affirmed.