author: O’Brien, J. Lehman, J.

text:
    The People of the State of New York, Respondent, v. Edward Fisher, Isidore Helfant and Harry Dreitzer, Appellants.

      (Argued October 25, 1928;
    decided December 4, 1928.)

      Marshall Snyder, Ralph K. Jacobs and Irving J. Seaver for Edward Fisher, appellant.
    The trial court’s refusal of a separate trial for defendant Fisher deprived him of due process of law, and of a fair and impartial trial. (People v. Snyder, 246 N. Y. 491; People v. Doran, 246 N. Y. 409; People v. Sweetin, 325 Ill. 245; People v. Buckminster, 274 Ill. 435; Commonwealth v. James, 99 Mass. 438; White v. People, 81 Ill. 333; People v. Carmichael, 314 Ill. 460; Flamme v. State, 171 Wis. 501.)

      Joseph A. Solovei, Joseph Shalleck and Henry G. Singer for Isidore Helfant, appellant.
    The People failed to establish beyond a reasonable doubt that the alleged confession of Helfant was voluntary. (People v. Doran, 246 N. Y. 437; People v. Pantano, 239 N. Y. 419; People v. Taranto, 217 N. Y. 199.) The denial of the motion for a separate trial was an abuse of discretion and prevented the jury from properly weighing the testimony produced upon the various issues raised at the trial. (People v. Doran, 246 N. Y. 409; People v. Snyder, 246 N. Y. 494; People v. Sweetin, 325 Ill. 245; Commonwealth v. James, 99 Mass. 438; People v. Buckminster, 274 Ill. 435; White v. People, 81 Ill. 333; Roche & Emanuel v. State, 5 Coldw. [45 Tenn.] 39; Morrow v. State, 82 Tenn. [14 Lea] 475; State v. Bessa, 38 So. Rep. 985; State v. Frazee, 152 Pac. Rep. 462; Flamme v. Slate, 171 Wis. 501; People v. Car

      michael, 311 Ill. 460; People v. Rupert, 146 N. E. Rep. 466.)

      George Gordon Battle and Harvey J. Bresler for Harry Dreitzer, appellant.
    A joint trial was prejudicial to defendant Dreitzer and deprived him of a fair and impartial review by the jury of the competent evidence against him. (People v. Snyder, 246 N. Y. 491; People v. Doran, 246 N. Y. 409; People v. Sweetin, 325 Ill. 245; People v. Buckminster, 274 Ill. 435; White v. People, 81 Ill. 333; People v. Rupert, 316 Ill. 39; People v. Young, 316 Ill. 508; People v. Carmichael, 314 Ill. 460; Commonwealth v. James, 99 Mass. 438; Flamme v. State, 171 Wis. 501.) The weight of evidence was contrary to the verdict of the jury who did not resolve the benefit of a reasonable doubt in favor of the appellant Dreitzer. (People v. Cassidy, 160 App. Div. 641; People v. Kennedy, 159 N. Y. 346.)

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for respondent.
    The appellant Fisher’s guilt was proved beyond a reasonable doubt. The trial court properly denied his application for a separate trial. (People v. Seppi, 221 N. Y. 62; People v. Trybus, 219 N. Y. 18; People v. Jackson, 182 N. Y. 66; People v. Doran, 246 N. Y. 409.) The appellant Helf ant’s guilt was proved beyond a reasonable doubt. His confession was not obtained illegally. The trial court properly denied his application for a separate trial. (People v. Meyer, 162 N. Y. 357; People v. Doran, 246 N. Y. 409; People v. Wiener, 248 N. Y. 119.) The appellant Helf ant was accorded a fair and impartial trial. The trial was free from error. (People v. Braun, 158 N. Y. 558; People v. Wood, 201 N. Y. 158; People v. Hackett, 82 App. Div. 86; People v. Webster, 139 N. Y. 73; People v. Hinksman, 192 N. Y. 421; People v. Johnston, 228 N. Y. 332; People v. Davey, 179 N. Y. 345.) The appellant Dreitzer’s conviction was proved beyond a reasonable doubt. His confession was properly received in evidence. He was not entitled to a separate trial. (People v. Seppi, 221 N. Y. 62; People v. Trybus, 219 N. Y. 18; People v. Jackson, 182 N. Y. 60; People v. Meyer, 162 N. Y. 357; People v. Doran, 246 N. Y. 409; People v. Wiener, 248 N. Y. 119; People v. Nawakowski, 221 App. Div. 521.)
   O’Brien, J.

These defendants were tried together and convicted of murder in the first degree committed while engaged in a felony.

During the first month of this year many' robberies had been perpetrated in Brooklyn drug stores. Police officers had been .detailed to protect these establishments and were stationed in some of them. On the night of January 31, William E. Kelly, an officer in plain clothes on duty in the rear of the store conducted by Irving Stoller at Nostrand avenue and Crown street, was shot and killed. Three young men were driven by a fourth to the store in a taxicab. All except the driver dismounted and, while one did not proceed beyond the outer room, two with drawn revolvers entered Stoller’s prescription room. They commanded: Stick em up,” and in a struggle which followed between the officer and one of the invaders the policeman was killed. The three youths who entered the store have been identified as these defendants.

The driver of the taxicab, Samuel Krassner, was an accomplice and gave evidence on this trial. Subsequently, on his plea of manslaughter in the first degree, he was sentenced to a term of imprisonment. He testified that on the night of the murder he drove his taxicab from Suffolk and Rivington streets in Manhattan to Nostrand avenue and Crown street in Brooklyn. Helfant, Fisher and Dreitzer were his passengers. On five or six previous occasions he had gone with some of them when they held up places and on this night he understood that they intended to rob some place. On arrival near Stoller’s drug store all three left the taxicab. Fisher and Dreitzer went around the corner of the building in which that store was located. Helfant returned to the car and directed Krassner to drive up to the corner. Then Helfant again left the cab and walked into the store. Four or five minutes later Krassner saw Dreitzer and Helfant running with guns in their hands. They re-entered the cab and ordered him to drive. Dreitzer said to Helfant, Hurry up, we killed the cop. We gave him the works, we found a badge in his pocket.” They left Krassner at Dean street and Vanderbilt avenue, where he also abandoned his cab and, entering another one as a passenger, he was driven to a restaurant in Williamsburg. There he met Dreitzer and Helfant in the wash room, saw them cleaning their guns and heard Dreitzer complain that he had blood on his clothes. Two days later he met Dreitzer, Helfant and Fisher together on Norfolk street in Manhattan and, in the presence of all, Helfant made allusions to the murder and warned Krassner to withhold from the police his knowledge of the crime. Stoller, the proprietor of the drug store, recounted the entry of the robbers and some of the details of the affair preceding the shooting and identified Dreitzer and Fisher as the two who had entered his prescription room and engaged in the struggle with the policeman. He saw Dreitzer and another whom he could not identify enter a cab and drive away. Fisher was identified by Mrs. Zinnell who saw him running across the street from the drug store toward the departing tiaxicab immediately after the shooting. A few seconds later she saw him standing in front of the entrance of the building where she lived. He addressed her and pretended to have been disappointed at his inability to decipher the license number of the taxicab. It left before he had time to board it. Dreitzer was arrested at three o’clock in the afternoon of February 11th. At five minutes past midnight on the morning of the next day, by Fisher’s testimony at the trial, Helfant and Fisher left New York for Baltimore. There they remained until February 18th. The next morning both were arrested while guests at an hotel in West Forty-seventh street in New York where neither resided. Helfant lived with his parents in Brooklyn and Fisher for several years had led a transient and nomadic existence on the lower East Side of Manhattan. The testimony of the accomplice, corroborated by other evidence, tends to connect all these defendants with the commission of the crime and, exclusive of any confession, supports the judgment against them.

The vital question in this case relates to the propriety of the trial judge’s exercise of discretion in denying motions made by each defendant for a separate trial. Having been jointly indicted, they could be tried separately or jointly in the discretion of the court. (Code Criminal Pro., section 391.) The statute primarily vests discretion in the trial judge and not in us. We will not substitute our discretion for his and we will not interfere unless an abuse has been committed. The mere existence of confessions and the probability of their introduction in evidence do not necessarily require separate trials. (People v. Doran, 246 N. Y. 409.) The proposition is, of course, elementary that the discretion must not be arbitrary and that its exercise is subject to review by a court having jurisdiction to pass upon facts. The test is whether a separate trial will assist or impede the proper administration of justice and secure to the accused the right of a fair trial. The question always presented by such a motion is whether a jury can properly weigh the testimony upon the various issues which may arise. “ The decision of the trial court rendered before the trial is dictated by a reasonable anticipation based on the facts then disclosed. The decision of this court rendered upon a review of the trial itself rests upon determination of whether the prophesy has been realized.” (People v. Snyder, 246 N. Y. 491, 497.)

Let us apply these tests.

Fisher has never admitted his guilt, but Dreitzer and Helfant, shortly after their arrest, made confessions by which they and Fisher were thoroughly implicated. They withdrew them and attempted to convince the jury that these incriminating statements were untrue and had been inspired solely by fear of police officers and through coercion. They asserted that they had been beaten and threatened and that except for such treatment they would always have maintained their innocence. After the introduction of testimony by prosecution and defense directed to the issue whether their confessions were voluntary, they were admitted in evidence. From such conflicting testimony, the jury could find either that no threats and assaults had been made or, if they had been made, that they did not constitute the motive for the prisoners’ concession of guilt. A verdict importing voluntary action by Dreitzer and Helfant could rest upon the fact that their identity had previously been disclosed by Krassner. No promise of immunity had been given, but a reasonable conclusion could follow from all the evidence that, like Krassner, they, too, hoped that, if they told the truth, the consequences to them might be less severe. The issue concerning the voluntary or enforced nature of their confessions was submitted in a charge harmonious with the rule in People v. Doran (supra) and People v. Weiner (248 N. Y. 118). Instructions also were given that neither confession, even if voluntary and credible, could properly be considered against any defendant except the one who made it.

A jury’s difficulty in discarding such crushing proof of guilt against all three defendants as is displayed by these voluntary confessions by two of them is readily understood. If this judgment rested upon partially forbidden evidence, some of which was admissible only against Dreitzer and some only against Helfant but neither kind admissible against Fisher, the convictions could not stand. The basis for the judgment is, however, totally different. Cast out the confessions and the result would need to be the same. Its foundation, therefore, may be perceived in evidence entirely dissociated from the confessions. On a record abounding less in independent proof of guilt, some perplexity and wavering doubt might arise. Even with the confessions in evidence, the jury under instruction from the court, must have realized that an ultimate estimate of the case leaves only one issue: Who were the three men who entered Stoller’s drug store immediately prior to Kelly’s death? Those three men, whoever they were, committed the felony in progress when Kelly was slain. Proof of their identity, from sources unrelated to the confessions, is complete. The testimony is reasonable and the jury had no justification for doubting it. Three trials would impede the course of justice. Public rights would be incumbered by delays and expense. The probability of acquittal for any one of these defendants would not be increased. If Fisher were tried alone, the jury could not fairly disregard testimony by Krassner that Fisher was one of the passengers in his taxicab and left it directly in front of the building where the murder occurred, nor testimony by Stoller that he was one of the robbers who entered the store, nor testimony by Mrs. Zinnell that he attempted to escape in Krassner’s cab immediately after the killing, nor his own testimony that he departed from the city within a few hours after the arrest of Dreitzer, proof of whose identity would have been admissible on a separate trial of Fisher, and that hé returned to New York with Helfant, proof of whose identity would be equally admissible on a separate trial of Fisher, and that under an assumed name he registered with Helfant at an hotel several miles from the locality which he was accustomed to haunt. Suppose Helfant had a separate trial. He, too, would be confronted by Krassner’s evidence that he left the cab, entered the store, returned with a gun in his hand, cleaned that gun in the washroom of the restaurant and a few days thereafter, in conversation with Krassner, Fisher and Dreitzer, he referred to the murder. He admitted his departure to Baltimore and his arrest at the New York hotel in company with Fisher. Fisher’s father testified that Helfant had spent the time from February 12 to February 18 in his house at Baltimore, How could Dreitzer have fared better if he were sole defendant? Identification by Krassner and Stoller was positive. One swore that he drove him to the scene of the murder and drove him away again, that later he cleaned his gun in the washroom and called attention to blood on his clothes. The other swore that Dreitzer was the man who pointed a revolver at him in the prescription room of the drug store. The problem of the identity of the three murderers could be and was solved to the satisfaction of one jury with the same degree of reasonable certainty as ought to be acceptable to three juries. We cannot force ourselves into such a state of mind as might induce us to indulge in speculation whether one trial instead of three affected the substantial rights of any of these defendants. Each had a fair trial. Justice has been wrought according to law and we know it.

Varying circumstances bear upon the soundness of discretion to be exercised under section 391 of the Code of Criminal Procedure in refusing to grant motions for separate trials. The rule is not doubtful. We have expressed it in the Doran and Snyder cases. Its correct application must rest upon the facts in each case. Prospection by the trial judge is not final. A retrospective view by an appellate court may reveal injustice or impairment of substantial rights unseen at the beginning. In a case where, without the existence of a confession by one defendant, the evidence against another would be too weak to justify a conviction or even where a conviction would be doubtful, our review of the judgment would compel us to conclude that an abuse of discretion had been committed. One who makes no confession must be found guilty, if at all, only on proof independent of a confession by a codefendant. Here we find no reversible error and so the judgment of conviction should be affirmed.

Lehman, J.

(dissenting). On January 31, 1928, William E. Kelly, a police officer, was killed while attempting to protect a drug store against an attempted robbery. Four men have been charged with his murder. Three have been convicted after a joint trial in which the fourth took the stand as a witness for the People.

All three defendants moved before trial for separate trials. The motion was denied. It was renewed several times at the trial. Each defendant has at all times contended that he could not have a fair trial before a jury which was called upon to decide the guilt of all.

The Code of Criminal Procedure permits a joint or several trial “ in the discretion of the Court.” Every person accused of wrong is entitled to a fair trial by an impartial jury. Only a jury — not this court or any other court — may pass upon the guilt of an accused, and the jury’s verdict must be based upon a fair consideration of competent evidence bearing upon the guilt of the accused. The constitutional guaranties of life and liberty, which we claim to cherish, and the rules of evidence in criminal cases, have been devised as means to this end. No considerations of expense to the State, inconvenience to witnesses and public authorities, or even of delay in punishment of the guilty can justify a procedure which results in serious impairment of the rights of an accused to a fair consideration by an impartial jury of the competent testimony produced against him.

Upon a joint trial the jury is called upon to decide the guilt of each accused. The jury hears the evidence produced against all. Evidence which is relevant as to the guilt of one accused may be irrelevant upon the guilt of a codefendant. One defendant may have made admissions or confession which are competent evidence against him. They are inadmissible against the other defendants. The jury must sift the evidence produced before it, and in arriving at its determination of the guilt of each defendant it may consider only the evidence which is competent and relevant against that particular defendant. We may assume that jurors will try to obey the instructions of the court and to give to each defendant a fair trial. The question will always remain whether they can do so in a particular case. That question is now before us in this case.

Judge O’Brien summarised somewhat briefly the testimony produced at the trial of the three defendants. If the testimony of Krassner, the confessed accomplice, is true, then there can be no doubt that all the defendants are guilty. Undoubtedly there is ample evidence in corroboration to sustain a finding of guilt against each. Dreitzer has confessed, though on the stand he repudiated his confession. He has also been identified by the owner of the drug store. Helfant has made admissions which, if voluntary, demonstrate his guilt. Fisher has been identified by two impartial and credible witnesses, and some circumstantial evidence tends to show consciousness of guilt.

I doubt whether any person can read Krassner’s testimony without arriving at the conviction that he is a poor wretch, cowering with fear at the prospect of a conviction which would bring with it the death penalty and willing to testify, truthfully or falsely, against a guilty participant in his crime or against an innocent person, if only he can save his own life. Nevertheless when Dreitzer’s confession and Helfant’s admissions substantiating the accusations of Krassner against these three defendants were produced in evidence, doubt as to the truth of the accusations which might be founded upon Krassner’s character disappears. Dreitzer’s confession was admissible against him. Helfant’s admissions were competent against him. The evidence produced by all the defendants in this case that they had been subjected to cajolery, threats or blows by the police might perhaps tend to induce the jury to throw out both the confession of Dreitzer and the admissions of Helfant. It could not reasonably — or, I'might even say, possibly — impede the fair consideration by the jury of the evidence upon this point produced by each. Failure to sift and separate such evidence might prejudice the case of the People; we may say with reasonable certainty that it could not prejudice the case of any defendant. The jury did not reject Helf ant’s admissions. Otherwise his acquittal would have followed, as a matter of law. Those admissions established Helf ant’s guilt so clearly that the case against him could not have been much stronger if he had joined in Dreitzer’s confessions. Certainly the case against Dreitzer would hardly have been strengthened if he had joined in Helf ant’s admissions. Even where incompetent evidence has been erroneously admitted against a defendant we may disregard the error if the weight of the competent evidence is so great that the additional incompetent evidence adds no perceptible force to the People’s case. Under such circumstances we decide not that the defendant is guilty but that the jury’s verdict of guilt could not have been influenced by the error. So here we may say that the jury’s verdict against either Helfant or Dreitzer could not have been influenced by the testimony which would have been excluded at a separate trial.

The case against Fisher is entirely different. I have pointed out that he has not confessed or admitted any participation in the crime charged against him. The case against him may be as strong as- the majority of the court believes. It may be that the jury upon a separate trial must reasonably arrive at the same verdict. Unless we are prepared to say that we may pass upon the guilt of an accused in place of a jury, we may not conjecture or even reason as to what a jury would do upon a separate trial. We may only consider whether the jury in the present case could and did give fair consideration to the evidence bearing on the defendant’s guilt. All else is irrelevant.

Since that is the only question which I consider serious in this case, no extended analysis of the competent evidence against Fisher is necessary. Krassner testified that Fisher was a passenger in his taxicab and left it directly in front of the building, but Krassner’s credibility was impeached if not destroyed. Stoller, the owner of the drug store, identified Fisher as one of the robbers, and Mrs. Zinnell testified that he tried to escape in the taxicab after the robbery, but though both witnesses were undoubtedly honest and conscientious, there is ground for argument that their identification was mistaken. Indeed, other witnesses produced by the People inferentially contradict Mrs. Zinnell. Fisher’s visit to his father’s home in Baltimore for six days is explained by him, and though he registered at a New York hotel under an assumed name, it was a name which he had used for some time. All these were matters which the jury was called upon to weigh. Can it be said that they did so upon this trial?

Judge O’Brien states that “ Even with the confessions in evidence, the jury, under instruction from the court, must have realized that an ultimate estimate of the case leaves only one issue: Who were the three men who entered Stoller’s drug store immediately prior to Kelly’s death? ” I accept that analysis of the issue in the case. The confession of Dreitzer, the admissions of Helfant, established beyond doubt that Krassner’s testimony was true; that Stoller had identified the right men. We may well assume that the jury understood that the confession and admissions might not be considered- against Fisher, but when the confession and admissions had resulted in establishing the truth and accuracy of the testimony given by Krassner and Stoller, could the jury then weigh the credibility of that testimony over again, ignoring the very testimony which had already substantiated it? Certainly jurors are not accustomed to weigh evidence in that manner, and I confess that neither legal training nor long judicial experience has given me the ability to do so. The jury might perhaps separate the issues raised by each defense and consider only the competent and relevant evidence bearing on those defenses, but it seems clear to me that in weighing the credibility of the testimony against Fisher, they could not and did not ignore knowledge derived from other evidence which lent credibility to that testimony. In the final analysis the confession of Dreitzer and the admissions of Helfant led inevitably to the conviction -of Fisher, and if the testimony relevant to Fisher’s guilt had been weaker and his own testimony stronger, the result would have been the same.

We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them; yet here Fisher has been accused by his codefendants in their statements made before trial, and this evidence brought to the attention of the jury who were to pass on Fisher’s guilt at the same time as they passed on the guilt of his codefendants. We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high. Our ideal is that justice should be swift and certain. Human justice is still far from that ideal; and sometimes I feel that a proper zeal to destroy technicalities and achieve a more efficient administration of justice leads us to disregard fundamental principles and guaranties. Though the time may have come, as I think it has, for reconsideration and revision of the constitutional guaranties of liberty and statutory rules of evidence or procedure, that function does not rest with the courts. We may not do by indirection even for a laudable purpose what we are forbidden to do directly. Our duty is to preserve intact our constitutional guaranties and apply them not only in the letter but in the spirit. That, I feel, has not been done here.

Judgments against Dreitzer and Helfant should be affirmed, and judgment against Fisher reversed.

Cardozo, Ch. J., Pound, Crane and Andrews, JJ., concur with O’Brien, J.; Lehman, J., dissents in opinion as to defendant Fisher, in which Kellogg, J., concurs.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of the Claim of Lewis B. Hoffman against Chatham Electric Light, Heat and Power Company et al., Respondents. The State Industrial Board, Appellant. In the Matter of the Claim of Herman Gefers against New York Window Cleaning Company, Inc., et al., Respondents. The State Industrial Board, Appellant. In the Matter of the Claim of Aaron Rubenstein against Pechter Baking Company et al., Respondents. The State Industrial Board, Appellant.
    (Argued November 20, 1928;
    decided December 4, 1928.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for appellant.
    Schedule awards may be made for the loss of any members as the result of industrial accident specified in section 15, subdivision 3, of the Workmen’s Compensation Law. (De Caprio v. General Electric Company, 244 N. Y. 500; Colt v. O’Connor, 109 N. Y. Supp. 689.)

      William C. Hawver for Chatham Electric Light, Heat and Power Company et al., respondents.
    The State Industrial Board was without jurisdiction to make the award. (Matter of Marhoffer v. Marhoffer, 220 N. Y. 543; Matter of Rubenstein v. Pechter Baking Co., 224 App. Div. 324; Matter of Gefers v. N. Y. Window Cleaning Co., 224 App. Div. 792; Matter of Bernstein v. Hoffman, 219 App. Div. 152; Matter of Schaeffer v. Buffalo Steel Car Co., 221 App. Div. 808; Matter of Jennix v. Warren City Tank & Boiler Co., 221 App. Div. 827; Matter of Hinley v. Brooklyn Heights R. R. Co., 215 App. Div. 857.)

      James J. Mahoney and George J. Stacy for New York Window Cleaning Co., Inc., et al., respondents.
    The granting of a three-schedule award is improper and contrary to law. (Matter of Marhoffer v. Marhoffer, 220 N. Y. 543.)

      T. Carlyle Jones and Bernard J. Vincent for respondents.
    One schedule award for the loss of use of a member may not be made to begin at the conclusion of another schedule award for the partial loss of use of another member, but the case rather falls under paragraph “ u ” of subdivision 3 of section 15 of the Compensation Law. (Matter of Marhoffer v. Marhoffer, 220 N. Y. 543; Bernstein v. Hoffman, 219 App. Div. 152; Feeney v. Gorman, 218 App. Div. 796; Crockett v. Coppins & Sons, 202 App. Div. 535.)
   Per Curiam.

Under our ruling in Matter of Marhoffer v. Marhoffer (220 N. Y. 543) awards for injuries may not properly be consecutive.

The question of the application of subdivision 3-u of section 15 of the Workmen’s Compensation Law (Cons. Laws, ch. 67) is not before us on these appeals.

The orders should be affirmed with costs against the State Industrial Board and the questions certified answered in the negative.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Orders affirmed, etc.


author: Cardozo, Ch. J.

text:
    Albert O. Hesse, Appellant, v. Fred J. Rath, as Mayor of the City of Utica, et al., Respondents.
    (Submitted November 28, 1928;
    decided December 7, 1928.)

      Charles J. Fuess for appellant.
    The establishment of an airport or landing field is not a “ city purpose ” within the meaning of section 10, article 8 of the Constitution of the State of New York. (Sun Printing & Publishing Association v. Mayor, etc., 152 N. Y. 257; Matter of Chapman v. City of New York, 168 N. Y. 80.)

      Emerson M. Willis, Corporation Counsel, for respondent.
    Use of land for an airport is a use for a “ city purpose ” within section 10 of article 8 of the State Constitution, for which land may be acquired. (Sun Printing & Pub. Assn. v. Mayor, etc,, of New York, 152 N. Y. 257; People ex rel. Murphy v. Kelly, 76 N. Y. 475; Matter of Application of Mayor, etc., of New York, 99 N. Y. 569; Horton v. Andras, 191 N. Y. 231.)

      George P. Nicholson, Corporation Counsel (William E. C. Mayer of counsel), for city of New York, amicus curia.

    The purchase or acquisition of real property for an airport or landing field, paid for from the proceeds of the sale of bonds of a city, is a “ city purpose ” within the meaning of that term as it is used in section 10 of article 8 of the Constitution. (Schieffelin v. Hylan, 236 N. Y. 262; Matter of McAneny v. Board of Estimate, 232 N. Y. 377; Matter of McCabe v. Voorhis, 243 N. Y. 401.)

      George A. Reilly, Corporation Counsel (Robert R. Reed of counsel), for city of Albany, amicus curia.

    The establishment of an airport or landing field is a “ city purpose ” within the meaning of section 10 of article 8 of the State Constitution. (Wichita v. Clapp, 263 Pac. Rep. 12; State v. Johnson, 220 N. W. Rep. 273; State v. Cleveland, 160 N. E. Rep. 241; Sun Printing, etc., Assn. v. Mayor, etc., 152 N. Y. 257; Schieffelin v. Hylan, 236 N. Y. 254; Fletcher v. Hylan, 125 Misc. Rep. 489.)
   Cardozo, Ch. J.

A statute (L. 1928, ch. 647, amending General Municipal Law, Consol. Laws, ch. 24) authorizes the cities of this State to establish, construct, equip, maintain and operate airports or landing fields for aeroplanes and other aircraft. The local legislative body may regulate the use and establish fees or charges.

The city of Utica, acting under this statute, has contracted to buy 295 acres of land to be used as an airport, and has authorized its officers to issue its corporate bonds in the sum of $120,000 to pay the purchase price.

The Constitution of New York (Article VIII, § 10) provides that no city shall be allowed to incur any indebtedness except for city purposes.

Plaintiff argues that the acquisition of an airport or landing field is not a city purpose, even if a public one, and that the bonds, if issued, will be void.

We think the purpose to be served is both public and municipal.

A city acts for city purposes when it builds a dock or a bridge or a street or a subway (Sun P. & P. Assn. v. Mayor, 152 N. Y. 257). Its purpose is not different when it builds an airport (City of Wichita v. Clapp, 125 Kans. 100). Aviation is today an established method of transportation. The future, even the near future, will make it still more general. The city that is without the foresight to build the ports for the new traffic may soon be left behind in the race of competition. Chalcedon was called the city of the blind, because its founders rejected the nobler site of Byzantium lying at their feet. The need for vision of the future in the governance of cities has not lessened with the years. The dweller within the gates, even more than the stranger from afar, will pay the price of blindness.

The judgment should be affirmed, with costs.

Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Judgment affirmed.


author: Crane, J.

text:
    Frederick C. H. Arentz, Appellant, v. Morse Dry Dock and Repair Company, Respondent.
    (Argued November 27, 1928;
    decided December 7, 1928.)

      Ellwood Colaban and Cyril S. Stanley for appellant.

      Courtland Palmer for respondent.
    “ Permanent employment ” means employment for an indefinite time, which may be severed by either party. (Rape v. Mobile & O. R. Co., 136 Misc. Rep. 38; Sullivan v. Detroit, Y. & A. R. R. Co., 135 Mich. 661; Pennsylvania Co. v.
      Dolan, 6 Ind. App. 109; Lord v. Goldberg, 81 Cal. 596; Faulkner v. Des Moines Drug Co., 117 Iowa, 120; Davidson v. Laughlin, 68 Pac. Rep. 101; Louisville & N. R. Co. v. Offutt, 99 Ky. 427; Perry v. Wheeler, 12 Bush, 541; Elderton v. Emrnens, 4 C. B. 479; Roddy v. McGetrick, 49 Ala. 159.)
   Crane, J.

This action is brought for the breach of an alleged contract of employment. The defendant is engaged in a general dry dock and ship repairing business with its shipyard at Fifty-sixth street, Brooklyn, N. Y. The plaintiff, prior to the month of January, 1920, was a sea captain by profession, holding an unlimited Norwegian master’s license for sail and steam vessels. Having given up the sea during the war, the plaintiff came to reside with his wife in the Province of New Brunswick, Canada, where he was engaged in farming. A relative in Philadelphia, having called his attention to an advertisement for help, which the defendant had inserted in the newspaper, the plaintiff answered it, and was subsequently engaged as an assistant to the president, Mr. Morse. The plaintiff commenced work for the defendant in January of 1920, and remained until January of 1924, when he" was discharged because of hard times, or the slackness of business. At first he received a salary of $4,800 a year, which was increased to $6,000 a year, payable monthly.

The plaintiff seeks damages for his discharge because he alleges and attempts to prove that he was employed for life or at least for as long a time as the defendant remained in business. The allegation in his- complaint is that the plaintiff and defendant entered into an agreement wherein and whereby among other things, the plaintiff agreed to give up his business and profession as a shipmaster and to enter into the permanent employment of the defendant in New York city, as assistant to the vice-president and general manager.

An agreement to employ the plaintiff in such a position for life is so unusual that we would expect to find it contained in some writing. On the contrary, the plaintiff has sought to establish it in the conversation which he had with Mr. Morse when engaging and taking him into his employ, and rests it entirely in the use by Mr. Morse at that time of the word permanent.” The plaintiff says that Mr. Morse told him that his work or position would be permanent. An understanding of the relations of these parties will, I think, clearly indicate that no such extensive agreement was made as is claimed by the plaintiff.

The plaintiff was a Norwegian sea captain who, because of the war, or for other reasons, had ret'red to a farm which his wife owned in the Province of New Brunswick, Canada. He tired of farming and thought of going into business or some employment for which his experience had fitted him. The Morse Dry Dock and Repair Company needed help, and apparently had inserted an advertisement in the papers to get the required assistance. The plaintiff’s attention was called to the advertisement; he communicated with Morse and came to New York. What occurred is stated by the plaintiff as follows. I told Mr. Morse I came down to see him in answer to his wire about the position or opening he had with the Morse Dry Dock & Repair Co. I showed Mr. Morse my credentials. He had discharged his son and he wanted more help, and I showed him my credentials, and Mr. Morse wanted me to start right away, and told me that Your salary is $4,800 a year; your headquarters will be the New York office, and I want you as my assistant.’ I told Mr. Morse that I had been following the sea for twenty years and I would never think of taking a position anywhere except it was of a permanent character, and Mr. Morse referred to having had men working for him for thirty years and more, and right there I accepted Mr. Morse’s offer and accepted the position. He told me it was a permanent position and said that the salary would be increased as business improved.”

Assuming all this to be true, what did the parties mean by the use of this word permanent ” position? Did Mr. Morse engage the plaintiff for life on such short acquaintance, or did he simply intend to convey the meaning that the position was steady employment, steady work, not that of a temporary nature? Building a ship is temporary work; when the ship is finished, the employment is at an end, so far as that one ship is concerned. The same may be said about the job of painting a house, or a fence. A lawyer may have occasion to employ extra help under pressure. Such employment is merely temporary as compared to the steady work of the regular employees. Many businesses have employees who are extras, or fill temporary positions only required for a particular job or during certain seasons. That this is the sense in which these words were used in talking with the plaintiff is to be gathered from the language of the plaintiff himself, when spealdng of his other employments. After his discharge, he was employed by engineers, the Sherman Corporation, and by Swift & Company. He says of such work, “ That was a temporary position. I started in March and finished in July. * * * I just made a general investigation for Swift & Company here about the marine business. That was also temporary.”

Permanent,” as defined by the dictionary, has different shades of meaning, , like most words. One of these is something which lasts or endures, constant, as opposed to temporary.” (Webster’s International Dictionary.) Bouviér’s Law Dictionary defines permanent employment ” as employment for an indefinite time, which may be severed by either party.” (See, also, 3 Words & Phrases [second series'], 970.)

In the plaintiff’s letter, written March 14, 1921, he says: “As I mentioned to you this morning, I started in your concern with the verbal understanding that my position was a permanent one, and you also at that time referred to you having had men working for you for thirty years or more. Times have changed too much, and it is far from my nature to refer to this ‘ gentleman’s agreement ’ as binding. It is my opinion that no bargains are satisfactory except it is to be the mutual interests of both parties concerned. * * * Of course it is up to you to decide if you want me to stay in your concern where I always have felt so well. I am willing, of course, but only on the condition that it is a permanent position, and I can see no reason why my limit should only be the Scandinavian line.” This letter was written at a time when Mr. Morse proposed to let the plaintiff go. Thereafter, he was continued until January of 1924, as above stated. It may be from this letter that the plaintiff considered that he had a life employment. But it remains for the court to determine whether such was the agreement and contract of the parties. No length of time was ever mentioned. The plaintiff was taken in, as I have stated, in response to an advertisement; he was put to work at once, without Morse knowing anything about him except from his recommendations. He was assured that the position would be permanent.' It lasted about four years. Are we justified in saying that under all these circumstances the plaintiff has proved a life employment, or what amounts to about the same thing, an employment which is to last as long as the corporation does business, and the plaintiff’s services are satisfactory? Such contracts at least should be specific and definite, with little or no room for misunderstanding, even if they are not required to be in writing.

Wherever these words, “ permanent employment,” have been used in contracts which have been made between employer and employee, under circumstances as they appear in this case, they have been held to mean a steady employment, a steady job, a position of some permanence, as contrasted with a temporary job or a temporary employment. Standing alone and by themselves they do not mean life employment. (Sullivan v. Detroit, Y. & A. A. Ry., 135 Mich. 661, p. 671.) An agreement to give a person permanent employment means nothing more than that the employment is to continue indefinitely and until one or the other of the parties wishes for some good reason to sever the relation. (Lord v. Goldberg, 81 Cal. 596; Rape v. Mobile & Ohio R. R. Co., 136 Miss. 38; Texas & Pacific Ry. Co. v. Marshall, 136 U. S. 393; Perry v. Wheeler, 75 Ky. 541.)

All these cases differ from those in which from the circumstances of the case and. from the consideration which has been furnished, it is evident that one party intended to employ the other for life or a definite period. (Pierce v. Tenn. Coal, Iron & Railroad Co., 173 U. S. 1; Rague v. N. Y. Evening Journal Publishing Co., 164 App. Div. 126; Pennsylvania Co. v. Dolan, 6 Ind. App. 109.)

It must follow, therefore, that the employment of this plaintiff by the defendant was in a steady position as assistant or general manager, to continue at the will of the parties. Plaintiff was not obliged to stay with the defendant for life, neither was the defendant obliged to employ him beyond the time when in good faith it had no further use for his services. The complaint, therefore, was properly dismissed by the trial judge at the end of the plaintiff’s case for the reasons here stated.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Judgment affirmed.


author: O’Brien, J.

text:
    Board of Hudson River Regulating District, Respondent, v. Fonda, Johnstown and Gloversville Railroad Company et al., Appellants.

      (Argued October 24, 1928;
    decided December 31, 1928.)

      Edward C. Bailly, W. W. Miller, Lindley M. Garrison, Charles E. Gately, F. Law Comstock and Wesley H. Maider
      for appellants.
    The petition should have been dismissed because of the plaintiff’s failure to make any effort whatsoever to agree with the defendant The New York Trust Company, and to make a bona fide effort to agree with defendant Fonda, Johnstown and Gloversville Railroad Company, upon the compensation and damages to be paid for the property to be taken. (Bell Telephone Co. v. Parker, 187 N. Y. 299; People ex rel. Odle v. Kniskern, 54 N. Y. 52; Matter of Opening House Avenue, 67 Barb. 350; Matter of N. Y. & Boston R. R. Co., 62 Barb. 85; Sharp v. Spier, 4 Hill, 76; Adams v. Saratoga & Washington R. R. Co., 10 N. Y. 328; Matter of City of Buffalo, 78 N. Y. 362; City of Long Beach v. Long Beach Water Co., 209 App. Div. 902; Matter of Marsh, 71 N. Y. 315; Matter of Bronx Parkway Comm., 176 App. Div. 717; Matter of New York, Westchester & Boston R. Co., 151 App. Div. 50.) The petition should have been dismissed as to defendant The New York Trust Company, because of plaintiff’s failure to serve upon said defendant a notice of appropriation as required by section 446 of the Conservation Law. (Roosevelt Hotel Bldg. Co. v. City of Cleveland, 155 N. E. Rep. 233; Baltimore Belt R. R. Co. v. Baltzell, 75 Md. 94.) The Sacandaga reservoir, for which plaintiff seeks to condemn defendants’ properties, cannot lawfully be constructed under the Conservation Law, because it is primarily and predominantly a power project. (Matter of Ryers, 72 N. Y. 1; Matter of Mayor, etc., of New York, 99 N. Y. 569; Matter of Niagara Falls & Whirlpool R. Co., 108 N. Y. 375; Bd. of Black River Regulating District v. Ogsbury, 203 App. Div. 43; 235 N. Y. 600; Matter of Hemenway, 134 App. Div. 86; Matter of City of Buffalo, 78 N. Y. 362; 1 Fiero on Part. Act. & Pro. [4th ed.] 385.) The defendant railroad company being a common carrier engaged in interstate commerce and subject to the jurisdiction of the Interstate Commerce Commission, it is beyond the power of the State of New York, or of any of its instrumentalities, to authorize and direct the taking of portions of its railroad and railroad facilities. (Dayton-Goose Creek Railway Co. v. United States, 263 U. S. 456; People v. Public Service Comm., 233 N. Y. 113; People ex rel. N. Y. C. R. R. Co. v. P. S. Comm., 198 App. Div, 436; Railroad Commission v. Southern Pacific Co., 264 U. S. 331; Colorado v. United States, 271 U. S. 153; Alabama & Vicksburg Ry. Co. v. Jackson & Eastern Ry. Co., 271 U. S. 244.) Under the express provisions of the Conservation Law, the defendants are entitled to interest upon the amount of the award from the date of the judgment until thirty days after the entry of the final order confirming the report of the commissioners in condemnation. (Woodward Brown Realty Company v. City of New York, 235 N. Y. 278.)

      Nathan L. Miller and Charles W. Walton for respondent.
    The requisite formal proof of inability to agree with the owner of the property to be taken has been made. (Banner Milling Co. v. State of N. Y., 240 N. Y. 533; New York Tel. Co. v. State of N. Y., 169 App. Div. 310; 218 N. Y. 738; Matter of P. P. & C. I. R. R. Co., 67 N. Y. 371; Matter of Village of Middletown, 82 N. Y. 196; Matter of City of Rochester, 100 Misc. Rep. 421; Erie & Jersey R. R. Co. v. Brown, 57 Misc. Rep. 164; 123 App. Div. 655; Matter of R. H. & L. R. R. Co., 110 N. Y. 119; Village of Waverly v. Waverly Water Co., 127 App. Div. 440; 194 N. Y. 545; Stillwater & M. Street R. Co. v. Slade, 36 App. Div. 587.) It was not necessary under section 446 of the Conservation Law to serve a notice of appropriation on the owners of the property sought to be condemned, but if such notice was necessary, it was served on both the railroad and the trust company, (State Water Supply Commission v. Curtis, 192 N. Y. 319.) The Sacandaga reservoir is not primarily a power project but is primarily for the public health and safety as authorized by the Conservation Law. (Matter of

      Public Service Commission, 217 N. Y. 61; Matter of City of New York [Ely Avenue], 217 N. Y. 45; Bunyan v. Comm. of Palisades Interstate Park, 167 App. Div. 457; Kaukauna Water Power Co. v. Green Bay, etc., Canal Co., 142 U. S. 254; Green Bay, etc., Canal Co. v. Patten Paper Co., 172 U. S. 58; Hendersonville Light & Power Co. v. Blue Ridge I. R. Co., 243 U. S. 563; Ala. Power Co. v. Gulf Power Co., 283 Fed. Rep. 606; Black River Regulating District v. Ogsbury, 203 App. Div. 43; 235 N. Y. 600; Matter of Burns, 155 N. Y. 23; U. S. v. Chandler-Dunbar Water Power Co., 229 U. S. 53.) That a part of the property sought to be condemned is used in interstate commerce does not prevent its taking in this proceeding. (Cincinnati v. L. & N. R. R. Co., 223 U. S. 390; State of Georgia v. City of Chattanooga, 264 U. S. 472; Davis v. Cleveland, C., C. & St. L. R. Co., 217 U. S. 157; Kansas City Southern Ry. Co. v. Kaw Valley Drainage District, 233 U. S. 75; St. Louis Southwestern Ry. Co. v. Miller, 197 Fed. Rep. 815; 207 Fed. Rep. 338; Railroad Commission v. Southern Pacific Railroad Company, 264 U. S. 331; Thunder Bay Limestone Co. v. Detroit & M. Ry. Co., 294 Fed. Rep. 958; Matter of Philadelphia, Newtown & New York R. R. Co., 67 I. C. C. 252; Matter of Pearl Valley Railroad, 67 I. C. C. 748.) Interest on the amount of the award is allowable for thirty days after entry of the final order only. (Matter of Department of Public Parks, 53 Hun, 280; Hammersley v. Mayor, 56 N. Y. 533; Donelly v. City of Brooklyn, 121 N. Y. 9; Woodward-Brown Realty Co. v. State of New York, 203 App. Div. 625.)

      Albert Ottinger, Attorney-General (C. T. Dawes of counsel), for State Comptroller.
    The statute and the judgment have provided for all things which place State action beyond the purview of interference with Federal jurisdiction. (Railroad Commission v. Southern Pacific Railroad, 264 U. S. 331; Pennsylvania ex rel. Erie Railroad
      v. Tax Commission, 246 N. Y. 322; Georgia v. Chattanooga, 264 U. S. 472; United States v. Gettysburg Electric Ry. Co., 160 U. S. 668; Adirondack Ry. Co. v. New York State, 176 U. S. 335; Alabama & Vicksburg Ry. v. Jackson & Eastern Ry., 271 U. S. 244.)
   O’Brien, J.

Plaintiff is a public corporation created pursuant to section 432 of the Conservation Law (Cons. Laws, ch. 65) and is authorized pursuant to section 446 of that statute to acquire real estate by condemnation. It brought this proceeding to acquire title to and possession of certain property of the Fonda, Johnstown and Gloversville Railroad Company in Fulton county. Its stated purpose was the construction of a dam and reservoir for the regulation of the flow of the waters of Sacandaga river which lie within the territory of the Hudson River Regulating District. Commissioners were appointed to ascertain the compensation to be paid for the property taken and they rendered a report which was confirmed. The order of confirmation has been unanimously affirmed on the law and the facts and it is attacked on several grounds.

Appellants contend that the finding of fact that plaintiff in good faith endeavored to purchase the lands and was unable to agree with the owners is without evidence to support it. The New York Trust Company is trustee for mortgage bondholders of the Fonda, Johnstown and Gloversville Railroad Company and as such is the owner of the mortgage which constitutes a lien on the railroad property and, therefore, is an owner ” as defined by section 2 of the Condemnation Law (Cons. Laws, ch. 73). Section 446 of the Conservation Law provides that if the Board cannot agree with the owners upon compensation and damage, it shall serve upon them a notice that the real estate has been appropriated. Prior to the institution of this proceeding, the Board requested a summary of the railroad’s claim. As presented by the railroad and accompanied by a letter of approval from the attorneys for the trust company it exceeded $4,000,000. After an informal oral discussion between representatives of the Board and of the railroad the Board made a written offer to the railroad of $550,000. Other oral conferences occurred which no direct representative of the trust company attended. The award in this proceeding was $1,442,130 for property which the railroad and the trust company claimed to be worth more than $4,000,000. The Board’s offer, while far less than the amount awarded, is so much closer to the actual value than to the defendants’ demand that no justification can be found in the charge that the Board did not act in good faith. The trier of the facts found that the offer was Iona fide and that finding is fully supported. After the Board’s attempt to agree with the railroad ended unsuccessfully, any effort to agree with the holder of the mortgage would -have been futile and, therefore, was not required. When one of two owners of the same property refuses to come to an agreement, the other owner, even if willing, is powerless to act. Wdien the negotiations for purchase failed, the Board adopted a resolution appropriating the real estate and, in accordance with section 446 of the Conservation Law, served written notice to that effect upon the railroad. It failed so to notify the trust company, except by the petition in this proceeding. Appellants argue that the words “ as hereinafter provided ” were inadvertently inserted in section 446 and are surplusage. The trial court held them to be without meaning and we agree. The petition was served upon the trust company twelve days prior to the date required and it included a statement that the Board had appropriated the real estate described therein.

Among the principal attacks made upon the validity of this proceeding is one which rests upon appellants’ argument that the Sacandaga Reservoir is primarily and predominantly a power project. Section 430 of the Conservation Law defines the term “ regulating reservoir ” and declares: “ Such term is not intended to include a reservoir created by a dam constructed or maintained for power purposes, but is intended to include a reservoir at or by reason of which there may be, as an incident to the construction, maintenance and operation of such regulating reservoir, the possibility of the utilization of a portion of the water stored thereby for power purposes, without in any way interfering with the primary purpose of a reservoir constructed under the provisions of this article.” The creation of river regulating districts is authorized by section 431 in order that they may construct, maintain and operate reservoirs for the purpose of regulating the flow of streams “ when required by the public welfare, including public health and safety.” By the statute, the generation of power is made an incident of a regulating reservoir; promotion of public health and safety is its primary purpose. The Board’s determination and all its acts conform with the theory that it acquired defendants’ property for the primary purpose of protecting public health and safety. By resolution it so declared. The facts before it are matters of common knowledge and are set forth in this record. They do not convince, us that the Board’s declaration was a subterfuge employed for the purpose of erecting a reservoir to be used primarily for generating power. The evidence proves that the territory through which flow the Hudson and its tributaries, including the Sacandaga, has long been subject to alternating droughts and floods. The floods devastate property, render cities and villages unsanitary and impede the operation of street traffic, railroads and factories. The droughts tend to deprive the inhabitants of wholesome water for drinking and bathing, interfere with filtration plants, cause accumulation of sewage and breed noxious germs. These facts, known to all, are abundantly proved. Appellants argue, however, that such conditions do not constitute the real motive for the Board’s action but are used as a pretext for disguising the actual project of a power plant. They say that the assessment of only five per cent of the cost upon the cities of Albany, Troy, Rensselaer and Watervliet and the village of Green Island as against ninety-five per cent upon private mill owners in the district is a significant point in such an argument. They urge that the extent of the benefits which will be derived by private business organizations from the reservoir, its capacity and the point of regulation, together with the activity of private beneficiaries toward the creation of the district show that power development is the primary purpose which the Board had in view. Lastly, they proclaim that conditions affecting public welfare, including public health and safety, will be improved only to a comparatively minor extent. With this argument we cannot agree. Public health and safety are superior to other considerations and their promotion in the measure shown in this case is sufficient justification for regulating the flow of the waters in this district. Other interests have been benefited by the promotion of this primary purpose. That does not matter. (U. S. v. Chandler-Dunbar Co., 229 U. S. 53.) Those beneficiaries must pay for what they got. Section 460 of the Conservation Law directs that the assessment of cost shall be “in proportion to the amount of benefit which will enure to each such public corporation and parcel of real estate by reason of such reservoir.” The increased advantages derived by manufacturers can be measured in money. Salutary results to public health and safety are difficult, if not impossible, to appraise in terms of cash. That these private manufacturers exerted themselves toward the creation of this district from mixed motives may be taken for granted; ' doubtless their conduct was not wholly altruistic. By their efforts, partly selfish, the public good was enhanced. By their zeal, may be for personal profit, they contributed to a beneficent public purpose. Ho where on the Hudson watershed could a reservoir be constructed which would more effectually regulate the flow. So testified defendants’ engineer and so the courts have found. The evidence fully supports the finding that the Board’s avowed purpose was the actual one. It was to regulate the flow as required by public health and safety.

Perhaps the most emphatic line of attack against this judgment and this order consists in the argument that the State is without authority to take property belonging to a common carrier engaged in interstate commerce. The judgment and the final order authorize the taking of nearly seven miles of main line track and right of way together with some stations, side tracks and terminals, but they also provide compensation for the cost of relocating these facilities. Any attempt to compel abandonment of the railroad without authority from appropriate agents of government would be frustrated by the courts. (Dayton-Goose Creek Ry. v. U. S., 263 U. S. 456, 478; Colorado v. U. S., 271 U. S. 153.) That the power to regulate interstate commerce resides in Congress and its delegate, the Interstate Commerce Commission, rather than in any of the several States is a proposition so fully acknowledged as to require no argument. -We have frequently recognized this elementary rule. (People ex rel. N. Y. Central R. R. Co. v. Public Service Comm., 232 N. Y. 606; 233 N. Y. 113.) That the right of abandonment depends upon permission of the Interstate Commerce Commission is conceded. Questions of regulation, abandonment and of direct interference with interstate commerce are not present in this case. The State does not seek to interfere with, regulate or to cause abandonment. Its purpose is to acquire part of the carrier’s property in order to promote public health and safety and to pay enough to enable the carrier * advantageously to relocate and continue operation. Such payment will constitute compensation for the damage inflicted by the taking. The language of the judgment and the order may perhaps fail in one respect to take continued operation into the fullest account. They provide that, upon payment or tender of the amount determined to be due, the plaintiff shall be entitled to enter upon and take possession of defendant’s property. Probably the decrees were not intended to operate as broadly as their language may seem to indicate, but they must be taken as they read upon their face. (Kansas City Southern Ry. Co. v. Kaw Valley Drainage District, 233 U. S. 75, 76.) Section 445 of the Conservation Law directs the Board, in the exercise of its dominant right of eminent domain over the right of eminent domain of public corporations, to take due care to do no unnecessary damage and to refrain from interference with their operation and usefulness beyond the actual necessities of the case. No doubt the order and the judgment contemplate that the Board will so act. They may be susceptible of misconstruction, however, and conceivably the Board might regard them as authority to take immediate possession. To the end that full compliance may be had with section 445, the order and the judgment should be modified so as to suspend their complete effect until the railroad can relocate and construct a new line. The time for such relocation must, of course, be reasonable and should be stated in the order and judgment as modified. If the railroad company should fail to relocate its stations and tracks within such a reasonable time, its neglect would necessarily be construed as a voluntary abandonment. When the State takes this property and makes adequate provision for its location elsewhere it does nothing to regulate or tó cause an abandonment. With the questions of abandonment and possible direct interference with interstate commerce eliminated from the case, the right to acquire and take possession of the property is clear. In this proceeding the State does not pretend to exert its police power It is exercising its power of eminent domain, a power which is inherent in every sovereign and has not been surrendered to the United States. (Cincinnati v. L. & N. R. R. Co., 223 U. S. 390.) Even though interstate commerce may indirectly or incidently be involved, a State, even in the exercise of its police power, may adopt protective measures of a reasonable character in the interest of health, safety and welfare of its people. (Minnesota Rate Cases, 230 U. S. 352, 396.) No direct interference with interstate commerce can “be spelled out of an act by which a carrier is forced to do no more than to change the location of one or two small stations and some parts of its tracks. (Denver & Bio Grande R. R. Co. v. Denver, 250 U. S. 241.) The consequences flowing from this judgment and this order are not different in principle from the effect produced by proceedings to compel the removal of grade crossings. That the State can causé the elevation or depression of structures constituting parts of railroads carrying interstate commerce is firmly settled. (Erie R. R. Co. v. Board of Public Utility Commrs., 254 U. S. 394, 410, 411; Lehigh Valley R. R. Co. v. Bd. Pub. Utility Comm., 278 U. S. 24.) There is no extension of an existing line or a construction of a new line within the purview of the Transportation Act of February 28, 1920 (41 Stat. 456). There is a mere relocation with no addition to or abandonment of tracks or terminals and no substantial change in destination. The changes are those which the Supreme Court intimates to be within even the police power of a State to accomplish. (R. R. Comm. v. Southern Pac. Co., 264 U. S. 331, 345.)

Appellants urge that they are entitled to a larger sum of interest than they have received on their award. They claim that the award bears interest from the date of the judgment until thirty days after the entry of the final order. Section 13 of the Condemnation Law provides for a trial on issues raised by the petition and answer and the entry of a judgment adjudging the necessity of the condemnation of described real property and for the appointment of commissioners to ascertain compensation. Such a judgment was entered. Section 15 commands, in the event of confirmation of the report of the commissioners appointed in the judgment pursuant to section 13, that the court shall enter a final order directing payment of compensation to property' owners and provides that thereupon the Board shall be entitled to enter upon the property and hold it for the public use specified in the judgment. Such a final order was entered. The Condemnation Law marks a clear distinction between the judgment and the final order. Turning to the Conservation Law, we find in section 446 a provision relating to the right of entry and the allowance of interest on awards for property taken under the Condemnation Law. According to this section the Board shall have no right to enter and take possession until the owner shall have been paid or tendered the amount due “ under the final order and judgment in such proceedings with interest.” Section 457 of the Conservation Law directs: Payments of the amount due upon such final order and judgment with interest from the date of the judgment until thirty days after the entry of such final order and judgment, and payments for real estate taken by agreement, shall be made out of the general fund of the district.” If this section intends the expression final order and judgment ” to mean the final order provided for by section 15 and if it intends the word “ judgment ” literally to mean the judgment provided for by section 13, then the appellants are right and are entitled to interest from the date of the entry of that judgment. This conclusion is the most nearly reasonable one to be drawn from language somewhat baffling. We think that the draftsman of the Conservation Law used the word judgment ” in the same sense in which it is employed in section 13 of the Condemnation Law and that he intended, by final order and judgment,” to indicate the final order provided for in section 15 of the Condemnation Law.

The judgment and the final order should be modified by ah owing interest from May 14, 1926, the date of the entry of the judgment at Special Term, and further modified by providing for a term of one year from the date of entry of this order within which appellant railroad company can relocate its tracks, stations and terminals before surrendering possession, and in the event that such time shall, after diligent effort, prove insufficient, such ■ reasonable additional time thereafter as may be allowed by the Supreme Court and as so modified affirmed, without costs.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur.

Judgment accordingly.