author: Crane, J.

text:
    Benjamin Moore et al., as Executors of Katharine T. Moore, Deceased, Respondents, v. Colin M. Eadie, Appellant.
    (Argued April 4, 1927;
    decided May 3, 1927.)
    Real property — lease'— appraisal — provision in lease of real property for appraisal of value of building — appraisal may not be set aside because valuation is higher than court may determine — appraisers not required to adopt particular method of valuation where lease provided merely that they “ value the building.”
    1. An appraisal made by appraisers duly appointed in accordance with the terms of a lease providing that if the owner shall elect not to renew the same, appraisers shall be appointed “ to value said building in its then actual condition,” may not be set aside merely because the valuation is higher or lower than that which a court may determine after a trial.
    2. A contention that the appraisers did not keep within their jurisdiction and exceeded their powers in that they did not value the building according to reconstruction cost less deterioration, cannot be sustained. No provision of the lease required the appraisers to use that method of valuation. It merely required them “ to value the building.”

      Moore v. Eadie, 218 App. Div. 716, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 3, 1926, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.

      Warren Leslie and Edgar A. Martin for appellant.
    An award made by appraisers is final and conclusive upon the question of damage in the absence of fraud. (Williams v. Hamilton Fire Ins. Co., 118 Misc. Rep. 799; Toledo Steamship Co. v. Zenith Transportation Co., 184 Fed. Rep. 391; Wurster v. Armfield, 67 App. Div. 158; Matter of Fletcher, 237 N. Y. 440; Itoh & Co., Ltd., v. Boyer Oil Co., Inc., 198 App. Div. 881.)

      Charles L. Woody and Frank L. Holt for respondents.
    The court had power to set aside the appraisal and to determine the value of the building. (Halstead v. Seaman, 82 N. Y. 27; Borrowe v. Millbank, 5 Abb. Pr. 28; Dodds v. Hakes, 114 N. Y. 260; Cullen v. Shipway, 78 App. Div. 130; Strome v. London Assurance Corp., 20 App. Div. 571; Masury v. Whiton, 117 N. Y. 679; Matter of Burke, 191 N. Y. 437.) The appraisers did not follow the provisions of the lease and submission, adopted a wrong theory and exceeded their powers. (Blackwell’s Island Bridge Case, 198 N. Y. 84; Duffy v. Kelly, 55 N. J. 627; Briggs v. Smith, 20 Barb. 409; Butler v. The Mayor, 7 Hill, 329; Smith v. Cooley, 5 Daly, 401; Van Cortlandt v. Underhill, 17 Johns. 405; Hiscock v. Harris, 74 N. Y. 113; People v. Schuyler, 4 Weekly Digest, 570; Freeman v. Ralph Realty Corp., 198 App. Div. 788; Rand v. Redington, 13 N. H. 72; Adams v. Adams, 8 N. H. 82; Cook v. Carpenter, 34 Vt. 121; Howard v. Edgell, 17 Vt. 9.)
   Crane, J.

On October 13, 1903, the plaintiffs’ testatrix executed a lease to one Cornelia Burtt, of the premises known as No. 321 West Twenty-fourth street, in the borough of Manhattan, city of New York. The term of the lease was for twenty-one years; beginning November 1, 1903. At that time there was a dwelling house standing upon said lot, which had been erected pursuant to the provisions of a previous lease, of which this lease in question was a renewal.

A clause in said lease provided that if the owner elected not to renew the same, the value of the building on the property should be determined as follows:

“ The said party of the first part, her heirs or assigns, shall nominate one fit and impartial person and the said party of the second part, her executors, administrators or assigns, shall nominate one other fit and impartial person, which persons so nominated shall, each respectively, be an owner in fee simple of one or more lots in the immediate neighborhood in which the said lot hereby demised is situate, to value said building in its then actual condition.”

If the two persons thus appointed could not agree upon the value of the building before the expiration of the lease, “ then the parties hereto or either of them, or the heirs, representatives, successors or assigns of them or either of them, may, at any time after such expiration, apply to any person who as judge or justice may be holding Chambers of the Supreme Court of the said State in said borough, to name a third fit and impartial person, to be associated for the purposes aforesaid, with the two persons so nominated or appointed, and the decision of any two of the three persons so chosen whether as to the value of said building or as to the amount of said rent, shall in all cases be final and conclusive when ascertained by them as hereinafter also provided.” A method was provided in the lease for ascertaining the rent in case of renewal, but there was no method provided for ascertaining the value of the building in case of no renewal, except as contained in the words above quoted.

All the rights of the tenant, Cornelia Burtt, in and to the lease, and the building upon said lot, were subsequently assigned and transferred to the defendant herein.

On August 12, 1924, the landlord gave notice to the tenant, in accordance with the provisions of the lease, that she elected not to renew the same, and that she would pay to the tenant the just and fair value of said building. The term of the lease expired November 1, 1924. Thereupon, the plaintiffs selected as appraiser, John C. Gabler, and the defendant, William C. Toby; and these two men being unable to agree, a third appraiser, one Henry Brady, was appointed by a justice of the Supreme Court.

The appraisal was made; Brady and Toby decided that the building was worth $7,000; Gabler refused to join therein.

The plaintiffs refused to pay the award, and brought this action to set it aside, alleging that the award was unfair and improper; that the methods used in fixing the amount were without authority, and not according to the law, the terms of the lease or the agreement of the parties. After a trial, judgment was given setting aside the award, and fixing the value of the building at $3,900, which judgment has been unanimously affirmed by the Appellate Division. We are convinced that the courts below have misconstrued the terms of the lease, and that the plaintiffs failed to make out any case justifying an interference with the appraisal.

We can eliminate any question of fraud or wrongdoing, as no such claim is made. The only ground for attack is that the appraisers adopted a wrong rule of values. It was claimed by the respondents on the trial, and is urged here upon' appeal, that the lease provided a method for valuing the building, which was by ascertaining the cost of its reconstruction, less depreciation. We find no such provision in the lease. The appraisers, according to the terms of that instrument, are to be owners in fee simple of one or more lots in the immediate neighborhood, and are to value the building in its then actual condition.” This specifies the time at which value is to be ascertained, but does not provide the method or manner of valuation. The appraisal was not to proceed like a judicial hearing (Matter of Fletcher, 237 N. Y. 440), and could have been made in any way which was fair and equitable. As the appraisers were to be lot owners in the immediate neighborhood, it is fair to assume that they were expected to have some knowledge of values, and could have made their appraisal without revealing the reasons for their conclusion. The appraisers, however, wrote an opinion in which they stated that they had arrived at the valuation of the building by valuing the property as a whole, and deducting from it the value of the land. All three appraisers agreed that the value of the land was $5,000; two agreed that the value of the entire property was $12,000, and that the difference, $7,000, therefore, must represent the value of the building.

Personally, I can see nothing wrong with this method of procedure. The appraisers all agreed that the structure on the lot was an appropriate improvement. The land was 16.8 x 35, and the building a three-story dwelling with brick front, 16.8 x 28. The section had been restricted to residences by the Zoning Ordinances. The land had a market value, which would not change with the nature of the building upon it, if we exclude the cost of removal, which is not in this case. If the land were vacant, in estimating its market value, appraisers or judges could and should take into consideration the most advantageous use to which it could be put. Such is the rule in condemnation cases. (Lewis Eminent Domain [3d ed.], sect. 706; City of Syracuse v. Stacey, 45 App. Div. 249; affd., 169 N. Y. 231; St. Louis, etc., Ry. Co. v. Maxfield Co., 94 Ark. 135; Gorgas v. Phil., Harrisburg & Pittsburg R. R. Co., 215 Penn. St. 501; 10 R. C. L. sect. 113.) In valuing the land, therefore, these appraisers could value it as though it were vacant, and susceptible of having upon it a building such as the one in question, or any other suitable and appropriate structure, or in fact any other use to which the land could be put. All three appraisers agree that the value of the land was $5,000. If, therefore, the value of the entire property was $12,000, the balance must have been the value of the building. The one to complain of this method of valuation is the tenant, as the building very likely did not add its structural value to the land value. In estimating the most advantageous use which fixes land values, the appraisers might have considered a better and more available building than defendant’s. This would likely leave less for the defendant’s building than reconstruction value less wear.

Of course this method is not exclusive or final for ascertaining values, but it is not improper or illegal. The structural value ascertained by the cost of reproduction less deterioration is another method. (Matter of City of New York, 198 N. Y. 84.) Either or both may be resorted to, according to the circumstances, and especially where the improvement is an appropriate one, and the agreement or lease is silent as to the method to be adopted. Appraisals such as this are not to be set aside, merely because the valuation is higher or lower than that which a court may determine after a trial. It is to avoid litigation that the parties make appraisal agreements final. Something is expected to be charged up to profit or loss. Both time and money are expected to be saved by the determination of appraisers. Judge Peckham, of this court, in Perkins v. Giles (50 N. Y. 228), said that awards by arbitrators would not be set aside for mere errors of judgment or because the arbitrators decided wrongly as to the law or the facts of the case; and in Masury v. Whiton (111 N. Y. 679) it was said:

“ The award of an arbitrator cannot be set aside for mere error of judgment as to the law or facts of the case submitted to him. If, in making his award, he keeps within his jurisdiction and is not guilty of fraud, corruption or other misconduct affecting his award, then his award is unassailable.”

Both of these cases were cited in Matter of Burke (191 N. Y. 437) to sustain this statement of the law. “ The award thereunder is unassailable upon the ground that errors of law, or of fact, were committed. For it to be assailable at all, á ground must be found for charging the arbitrator with some misconduct, or with fraud, or with having exceeded his powers; or for the charge that the award, on its face, shows some mistake in figures, or in description, or some imperfection not going to the merits.”

The respondents recognize this rule, and have sought to justify their position by claiming that the arbitrators did not keep within their jurisdiction and had exceeded their powers. This claim rests entirely upon the construction of the lease, which would confine the appraisers to valuing' the buildings according to reconstruction cost less deterioration. As I have before stated, there is no such restriction or provision in the lease. It merely requires the appraisers to value the building. It was upon this ground that the trial judge gave judgment for the plaintiffs. He adopted this construction of the lease and said that the appraisers had exceeded their authority. In his opinion he stated:

It appears that the method by which this figure was arrived.at was by finding the market value of the land and building together, then valuing the land alone and subtracting from the value of the land and building the value of the land. Obviously this was not what was contemplated by the provision of the lease that the building was to be valued ‘ in its then actual condition.’ * * * It seems to be well settled that if appraisers value property by a different rule from that which their authority requires them to apply, it is as much a departure from the matters submitted as to pass upon a matter not submitted.”

No provision of this agreement, or lease, required the appraisers to apply the cost of reconstruction method of valuation. In this the trial justice was in error.

The difficulty of applying any one particular rule for valuation is evidenced by the testimony given in this case. Although insisting that the lease provided the rule of valuation, the counsel for the plaintiffs proceeded to introduce evidence under the other rule, in order to show the excessiveness of the award. The plaintiffs’ witness, Hunter, an expert, testified that the building on the premises enhanced the value of the land to the extent of $2,000, at which time the court remarked, “ The question of value is, how much this building at the time of the expiration of the lease enhanced the . value of the land, and that is the only question here.” The witness Horstman, another expert, testified for the plaintiffs that the land value was $9,500, and that the building added $2,000 to it. A witness named Ward, another real estate expert for the plaintiffs, testified, “ Q. What in your opinion was the value of this property at that time? A. $11,000.

Q. Did you separate that as between land and building? A. I did.
Q. How do you separate it? A. $9,000 value of the land and $2,000 value of the building.”

Counsel for the plaintiffs was thus adopting the rule of valuation he objected to the appraisers using. To prove that the appraisers had exceeded their powers and made an excessive award, he fell into the very methods used by them.

That the appraisers adopted no rule which was unfair or improper is borne out by the testimony of the appraisers themselves. Gabler, the plaintiffs’ appraiser, refused to join in the appraisal, so he says, because he did not interpret the lease as permitting him to value the land and building separately; he was a builder, but never considered himself " a real estate expert. Toby, the defendant’s appraiser, was also a builder, and he testifies that in making up his estimate, or appraisal, he not only adopted the method stated by the court’s appointee, Brady, but he also estimated the cost of reconstruction less depreciation. To reproduce the building, he says, would cost $11,389. ' He allowed one-third for depreciation. This gave him in round figures $7,500 as the value of the building according to this rule. He agreed, however, to make the figure $7,000, to correspond with the estimate of Brady, arrived at according to the other method. Two expert builders testified for the defendant; one, named Munroe, said that it would cost $12,000 to reconstruct the building, and allowing one-third for depreciation, made its value $8,000; the other, Adams, figured reconstruction at $11,402, allowing 30 per cent for depreciation, found the value of the building to be $7,982.

Eliminating, therefore, any question regarding the - powers and jurisdiction of the appraisers, there was nothing upon which to base a judgment for the plaintiffs’ setting aside the appraisal. The trial judge may have believed the witnesses for the plaintiff's as to valuation, instead of the witnesses for the defendant; but the parties by the lease had submitted this question for final determination to appraisers, not to the courts. A difference of opinion due to a conflict in testimony did not give jurisdiction to a court of equity to interfere with the award. As the appraisers had jurisdiction under our interpretation of the lease, their award must stand.

The judgment, therefore, of the Appellate Division and that of the Special Term should be reversed, and judgment ordered in favor of defendant upon bis counterclaim for the relief therein demanded, with costs in all courts. (Masury v. Whiton, supra.)

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

Judgment accordingly.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    In the Matter of Proving the Will of Elizabeth B. Frasch, Deceased. Mildred L. Martin et al., Appellants; United States Trust Company, as Executor and Trustee, et al., Respondents.
    Will — trust — charitable uses —• clause in will directing payment of income from trust fund to incorporated institutions which shall agree to use it for research in agricultural chemistry valid — provision one for charitable use within meaning of section 12 of Personal Property Law — not invalid because “ incorporated institutions ” may include business corporations, where it is clear income must be applied to public use.
    1. A clause in a will creating a trust for the purpose of establishing a fund for chemical research and directing the trustee to pay over the net income to “ one or more incorporated institutions in the United States, which shall be selected by the said trustee after advising with the American Chemical Society, upon the condition that the said institutions shall agree that the money so received shall be devoted to research in the field of agricultural chemistry, with the object of obtaining results which shall be of practical benefit to the agricultural development of the United States,” is valid. It makes provision for a charitable use within the meaning of section 12 of the Personal Property Law (Cons. Laws, ch. 41).
    (Argued March 30, 1927;
    decided May 3, 1927.)
    2. A contention that the clause is invalid because the term “ incorporated institutions ” may include business corporations, and that the trustee might under the terms of the will pay the income of the trust fund to one or more business corporations which maintain research departments for the purpose of making the business more profitable, cannot be sustained. Any institution to which income of the bequest is paid must apply it to a public use. No institution not authorized to apply to such use the moneys received by it could have been within the intention of the testatrix. Even if the testatrix intended that the trustee might use as an instrument in the execution of the trust a private corporation authorized to carry on research for the public benefit, if any such corporation exists, the fact that the money is earmarked for a “ religious, charitable, educational or benevolent use ” would render inconsequential the circumstance that the corporation has also other objects which are selfish in purpose.

      Matter of Frasch, 216 App. Div. 797, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 16, 1926, which unanimously affirmed a decree of the New York County Surrogate’s Court construing the residuary clause of the will of Elizabeth B. Frasch, deceased. .

      Charles A. Collin, John L. Wells and J. Arthur Leve for Mildred L. Martin et al., appellants.
    Construing the language of paragraph 6 of the will of Mrs. Frasch, either by itself or in connection with the oral evidence, sound legal reasoning and intelligent common sense understanding of the language, concur in compelling the conclusion that Mrs. Frasch intended that the net income, from the perpetuity fund she sought .to establish, should be devoted to the promotion of a beneficent business, rather than the endowment of an object of charity. A trust in perpetuity for such a business purpose is not a “ charitable use ” authorized by the Tilden Act. (Butter-

      worth v. Keeler, 219 N. Y. 446; British Museum, v. White, 2 Sim. & Stu. 594; Attorney-General v. Heelis, 2 Sim. & Stu. 76; Matter of Davis, 77 Misc. Rep. 72; Allen v. Stevens, 161 N. Y. 142; Holland v. Alcock, 108 N. Y. 312.) Paragraph 6 of the Frasch will is void for the further reason that the trustee is directed to pay the net income therefrom " to one or more incorporated institutions,” which direction permits the trustee to pay that net income to business corporations. (Matter of Wilcox, 194 N. Y. 288; Matter of Shattuck, 193 N. Y. 446; Matter of Robinson, 203 N. Y. 380; Matter of Cunningham, 206 N. Y. 601; Stewart v. Franchetti, 167 App. Div. 541; Manley v. Fiske, 139 App. Div. 665; Matter of Tactician, 109 Misc. Rep. 519; Butterworth v. Keeler, 219 N. Y. 446; Matter of Beekman, 232 N. Y. 365; Smith v. Pond, 90 N. J. Eq. 445.)

      Charles Angulo and James D. Ouchterloney for Mary B. Norton, appellant.
    The application of the trust money to assist industrial research is not a charitable use. (Butterworth v. Keeler, 219 N. Y. 446.) Since the latitude of choice vested in the trustee would permit of the application of the trust income to a use that is not charitable, the entire trust is affected and rendered invalid. (Morice v. Bishops of Durham, 9 Ves. 405; 10 Ves. 521; Matter of Shattuck, 193 N. Y. 446; Adye v. Smith, 44 Conn. 60; Mason v. Perry, 22 R. I. 475; Attorney-General v. National Provincial & Union Bank of England, 1924, A. C. 262; Matter of Clarke, 1923 [2 Ch. Div.] 407; Matter of Davidson, 1909 [1 Ch. Div.] 567; Strattonv. Physio-Medical College, 21 N. E. Rep. 874; Matter of Beekman, 232 N. Y. 365.) The trust is invalid because the trustee is authorized to pay the income to a private institution to be used by the latter in its own research work, and the will fails to specify the use that is to be made of the resulting discoveries. (Matier of Shattuck, 193 N. Y. 446; Butterworth v. Keeler, 219 N. Y. 446; Norris v. Thomson, 19 N. J. Eq. 307; Bascom v. Albertson, 34 N. Y. 584.) The court below erred in adopting the tests of “ pubhc usefulness ” and “ unselfish purpose ” in determining what constitutes a charitable trust. The true test must still be sought in the Statute of Elizabeth (43 Eliz. ch. 4). (2 Perry on Trusts [6th ed.], 1142; Williams v. Williams, 8 N. Y. 525; Allen v. Stevens, 161 N. Y. 122; Matter of Griffin, 167 N. Y. 71; Matter of Davis, 77 Misc. Rep. 72; Matter of MacDowell, 217 N. Y. 454.) The Frasch trust does not fall within any of the classes of charitable trusts recognized bylaw. The failure of the will to devote to a charitable use the information obtained and the discoveries made through the research work, is fatal to the claim that the trust is a charitable one. (Matter of Davis, 77 Misc. Rep. 72.)

      Michael E. Reiburn for William H. Blee et al., appellants.
    The trust sought to be set up by the provisions of paragraph 6 is void for the reason that it provides that the income shall be paid to one or more incorporated institutions in the United States, which provision permits the trustee to pay the income to incorporated institutions other than those which are charitable or pubhc, and that the avowed purpose of the trust is not charitable or benevolent. (Butterworth v. Keeler, 219 N. Y. 446; Matter of MacDowell, 217 N. Y. 454; Matter of Shattuck, 193 N. Y. 446; Matter of Robinson, 203 N. Y. 380; Matter of Cunningham, 206 N. Y. 601; Matter of Beekman, 232 N. Y. 365; Smith v. Havens Relief Fund Society, 44 Misc. Rep. 594; 118 App. Div. 678; 190 N. Y. 557; Haynes v. Carr, 70 N. Y. 463.)

      Joseph E. Cavanaugh for Cecelia E. Blee et al., appellants.
    The trust sought to be set up in paragraph 6 of said will is not a charitable one within the meaning of the Personal Property Law, section 12, and Real Property Law, section 113. (Williams v. Williams, 8 N. Y. 525; Matter of Cunningham, 206 N. Y. 601; 2 Perry on Trusts, 692; Income Tax Commissioners v. Pensel, [A. C. 1891] 531; Matter of Sutro, 155 Cal. 727; Livesey v. Jones, 55 N. J. Eq. 204.) Under the terms of the trust set forth in paragraph 6 of said will, the trustee is permitted to pay the income to incorporated institutions other than those which are charitable and public. (Matter of Shattuck, 193 N. Y. 446; Matter of Robinson, 203 N. Y. 380; Matter of Cunningham, 206 N. Y. 601; Butterworth v. Keeler, 219 N. Y. 446; Manley v. Fiske, 139 App. Div. 665; 201 N. Y. 546; Stewart v. Franchetti, 167 App. Div. 541.)

      William A. W. Stewart, George L. Shearer and John Henry Mottola for executor and trustee, respondent.
    The trust created , by the will of Elizabeth Blee Frasch is a trust for charitable purposes and falls squarely within the provisions of section 12 of the Personal Property Law and section 113 of the Real Property Law, known as the “ Tilden Act.” (Matter of MacDowell, 217 N. Y. 454; Matter of Cunningham, 206 N. Y. 601; Matter of Robinson, 203 N. Y. 380; Rotch v. Emerson, 105 Mass. 431; Sherman v. Richmond Hose Co., 230 N. Y. 468.) The terms of the trust created by the will of Mrs. Frasch contain no provision which is in any way inconsistent with the provisions of the Tilden Act. (Matter of Shattuck, 193 N. Y. 446; Matter of Robinson, 203 N. Y. 380.)

      Albert Ottinger, Attorney-General (Robert P. Beyer of counsel), for People of the State of New York, respondent.
    The trust created under paragraph 6 of the last will and testament of the decedent is valid as a trust for educational purposes. (Matter of MacDowell, 217 N. Y. 454; Matter of Davidge, 200 App. Div. 437; Matter of Robinson, 203 N. Y. 380; Matter of Cunningham, 206 N. Y. 601; Starr v. Selleck, 145 App. Div. 869; 205 N. Y. 545; Mercer v. Chamberlain Institute, 187 App. Div. 763.)
   Lehman, J.

. In the proceedings for the probate of the last will and testament of Elizabeth Blee Frasch, a supplemental decree has been made and entered which adjudges that the testatrix by the sixth paragraph of her will has made a valid disposition of the rest, residue and remainder of her property and that the trust created in that paragraph is in all respects legal and valid. We have concluded that this adjudication is correct.

The sixth paragraph of the will reads as follows:

“All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to the United States Trust Company of New York, r¡sr trust, however, for the purpose of establishing a fund for chemical research, which fund shall be known as the Herman Frasch Foundation for Chemical Research. I direct that the said trustee shall hold, manage, invest and reinvest the said fund, collect the rents, issues and profits thereof and after paying its proper charges and expenses, pay over the net income therefrom to one or more incorporated institutions in the United States, which shall be selected by the said trustee after advising with The American Chemical Society, upon the condition that the said institutions shall agree that the money so received shall be devoted to research in the field of agricultural chemistry, with the object of attaining results which shall be of practical benefit to the agricultural development of the United States. The payment of said income to the institutions so selected shall continue for the period of five years after my death, and before the expiration of the said five years, the trustee shall request The American Chemical Society to examine into the work done by the said institutions with the funds received from the Foundation, and to report to the trustee whether in its opinion, satisfactory progress has been made with the funds of the Foundation, toward the attainment of such practical results, and if the said Society shall report that in its opinion satisfactory progress has not been made by any institution, the trustee shall thereupon cease to make payments from the Foundation to that institution, and may select another institution in the same manner as above outlined, which institution, when so selected, shall receive such payments for the further term of five years, and every five years after my death the trustee shall obtain such a report from The American Chemical Society, and shall either continue to make payments to the institution then receiving such payments for the further term of five years, or may select other institutions as above provided, to receive the said payments for the ensuing five years. The trustee is authorized to use so much of the income from the said fund as may be necessary to pay the expenses and compensation of The American Chemical Society for advising and reporting as above provided.”

The testatrix undoubtedly intended to create a trust for purposes which would advance the public welfare. Intention to advance the public welfare is not sufficient to give validity to a trust in perpetuity for the benefit of indefinite and uncertain persons, unless such trust is authorized by chapter 701 of the Laws of 1893} now section 12 of the Personal Property Law (Cons. Laws, ch. 41). That statute applies to a “ gift, grant, or bequest to religious, educational, charitable or benevolent uses.” The enactment of that statute was part of a general scheme to restore to the courts of equity the power formerly exercised by Chancery in the regulation of gifts for charitable purposes. (Matter of Cunningham, 206 N. Y. 601; Allen v. Stevens, 161 N. Y. 122.) The provisions of the statute must be read in the fight of its history and purpose. We hold that under a fair con- , struction of the language of the will, the trust created thereby is within the provisions of the statute so read.

The testatrix has directed that the money shall be held for the purpose of “ estabhshing a fund for chemical research. ’ ’ Its income must be used for research. It must be paid over to “ one or more incorporated institutions in the United States, which shall be selected by the said trustee after advising with The American Chemical Society.” Such payment may be made only upon the condition that the said institutions shall agree that the money so received shall be devoted to research in the field of agricultural chemistry with the object of attaining results which shall be of practical benefit to the United States.” No institution to which payment of the income is made may use it for other purpose than research in the designated field and with the designated object. Other use would be a diversion of the income of the trust.

Research is the method used by modern universities and scientific foundations to increase the sum of human knowledge. Research conducted for such purpose and by such institutions is clearly" educational ” and “ benevolent ” within the meaning of the statute. Not every charitable, educational or benevolent use is enumerated in the statute 43 Elizabeth (c. 4) commonly called the Statute of Charitable Uses, though that statute was intended to limit the trusts for charitable uses which might be enforced by courts of equity. Conceptions of public charity, benevolence and education change with the passing generations. When the courts are called upon to give effect to a statute covering trusts to “ religious, educational, charitable or benevolent uses,” they construe those words as including at least those uses which prevailing conceptions bring within the spirit of the Statute of Elizabeth. (Williams v. Williams, 8 N. Y. 525; Matter of Cunningham, supra.)

No new conceptions of public benefit may, however, enlarge such words to include a use of the trust property for private profit o£ benefit. Doubtless the dominant purpose in the creation and management of a business corporation may occasionally be the advancement of the public welfare. None the less, where the income of the corporation may be applied to the profit of the founders, “ business has a beginning and charity an end.” (Butterworth v. Keeler, 219 N. Y. 446.) Where the terms of the trust are so indefinite that the trustees may apply the income if they see fit " to undertakings of public utility,” the possibility that such undertakings may include private enterprises renders the trust invalid. (Kendall v. Granger, 5 Beavan, 300.) A private pecuniary enterprise ” is not a public charity, even if indirectly it serves charitable ends,” per Holmes, J., in Stratton v. Physio-Medical College (149 Mass. 505). So, too, a trust which may include social, educational or moral benefit confined to members of a corporation and in which the general public has no direct participation, has been declared a trust for a private use. (Attorney-General v. Hewer, 2 Vernon’s Reports, 386; Carne v. Long, 2 De G., F. & J. 75; Miley v. Atty.-General, [1918] 1 Irish Rep. 455.) In such cases since the, use is not charitable even in a broad sense, an intent or purpose on the part of the creator of the trust to confer an indirect benefit upon the public does not change the character of the trust. Not even if the designated use might tend to create the contemplated public benefit would the rule be different. “ There is no authority for holding a charitable tendency to be a charitable use; in other words, that a gift to a person for his own benefit, whereby consequential charity may arise, is not a charitable use.” (Attorney-General v. Haberdashers Company, 1 Mylne & Keen’s Reports, 420, per Brougham, Lord Chancellor.) Benevolent motive or a purpose to confer a general benefit does not bring a trust within the terms of the statute if the trust permits a use which is personal, private or selfish.” (Matter of MacDowell, 217 N. Y. 454.) These principles are well established. Their validity is not challenged by expressions in judicial opinions in which the term purpose ” is used as synonymous with “ use.” Doubtless the purpose or intention of the creator of the trust often dictates the construction which the courts place upon the language he has employed to define the use ” of the trust. It is nevertheless the construction which the court places upon the language of the will under consideration and not the unquestioned public spirit and unselfish purpose of the testatrix which determines the validity of the trust she has created.

The trustee must pay over the income of the trust fund to one or more incorporated institutions.” The recipient must devote the money so received to research in the field of agricultural chemistry.” It is said that the term incorporated institutions ” may include business corporations, and that the trustee might under the terms of the will pay the income of the trust fund to one or more business corporations which maintain research departments for the purpose of making the business more profitable. If the trustee may under the will choose a business corporation as one of the “ incorporated institutions ” to which the income of the trust fund may be paid, and if further such business corporation may use that income for research to advance its own business interests, then undoubtedly the trust created is not valid. We have held in Matter of Shattuck (193 N. Y. 446) that a trust is invalid where a bequest is rdade to a trustee, the rents, profits and income thereof to be expended by him annually and to be paid over to religious, educational or eleemosynary institutions as in his judgment shall seem advisable.” The court in that case construed the words “ religious, educational or eleemosynary institutions ” as including educational institutions ” organized as stock corporations and conducted wholly for profit. Under that interpretation of the terms of the trust, the conclusion was inevitable that the trust was invalid, because, as the court pointed out, “ the will does not in terms refer in any way to the use to be made of the income of the trust fund. Such income is not in terms devoted to any purpose or object, and there is no direction by the testatrix to the institutions to which the income on the trust fund is paid as to what use they shall make of sucb gift. Its devotion to charity is dependent upon the object and purposes of the several institutions which by the grace of the trustee may become the beneficiaries thereof.”

In later opinions this court has pointed out the narrow scope of the decision in the Shattuck case. (Matter of Robinson, 203 N. Y. 380; Matter of Cunningham, 206 N. Y. 601.) “ The decisive consideration was the contrast which the court discerned in the mind of the testatrix between purposes that were educational and purposes that were eleemosynary.” The decision lays down no principle of large and general application. It defines the meaning of a particular will, and later cases have held that it must be limited to its special facts.” (Butterworth v. Keeler, 219 N. Y. 446.) Courts in other jurisdictions have interpreted the word "institutions” as including both private and public corporations when the language of a deed or will showed intention that the term should not be limited to corporations that were public, charitable or eleemosynary. (See Thomson’s Executors v. Norris, 20 N. J. Eq. 489; Taylor v. Keep, 2 Ill. App. 368; Matter of Clarke, [1923] 2 Ch. Div. 407; Minty v. Bourne, [1909] 1 Ch. 567; Grimond v. Grimond, 1905 A. C. 124.)

The meaning of the word " institutions is not so fixed that necessarily it must be held to include corporations organized for private as well as public purposes. Indeed when not used in context indicating a broader definition it may well be held to denote primarily organizations created for a public purpose. “ It is a little difficult to define the meaning of the term institution in the modern acceptation of the word. It means, I suppose, an undertaking formed to promote some defined purpose having in view generally the instruction or education of the public,” per Lord MacNaghten in Mayor of Manchester v. McAdam ([1896] A. C. 500). In the same case Lord Herschell cited with approval the definition contained in the Imperial Dictionary: “A system, plan, or society, established either by law, or by the authority of individuals, for promoting any object, public or social.” Definitions might be cited from all dictionaries of recognized authority that the word " institution at least suggests an organization formed for a public purpose. (See, also, Matter of McClellan’s Will, 46 N. B. 161.) At least where intention to provide for a public charitable use may be inferred, the word institution ” need not be given a construction which contravenes that intention. (Matter of Smith, 36 Times L. Reports, 416.)

In the present case, as we have pointed out, the testatrix has provided that any institution receiving income from the trust fund must use it for research in the field of agricultural chemistry. Though there may be private corporations which are permitted by their charters or certificates of incorporation to conduct research as an incident to and for the benefit of a commercial business, the research which was authorized by the terms of the will was not research so conducted. The authorized research was to be conducted “ with the object of attaining results which shall be of practical benefit to the agricultural development of the United States.” Though it is conceivable that research, where the results are appropriated by a commercial organization, might indirectly benefit the general agricultural development of the United States, it is hardly conceivable that this testatrix intended to devote her property to such private use when she indicated that the object of the research must be a general benefit. Indeed, the provisions of the will that the work done by the institutions receiving the income must be subject to the examination of the American Chemical Society, whose membership includes men engaged in the pursuit both of pure science and of science applied to commercial use, negative the secrecy which surrounds research by commercial organizations. In the case of Rotch v. Emerson (105 Mass. 431) the court held that from the context in which a testator had used the words for the promotion of agricultural or horticultural improvements ” the inference *must be drawn that the testator had in his mind the acquisition and dissemination of knowledge, the study and inculcation of principles affecting those departments of industry or of sciences relating thereto.” Similar inference is dictated by the language used in the will now under consideration.

A bequest for such use is clearly within the provisions of our statute for “ charitable uses.” Any institution to which income of the bequest is paid must apply it to a public use. No institution not authorized to apply to such use the moneys received by it could have been within the intention of the testatrix. Even if the testatrix intended that the trustee might use as an instrument in the execution of the trust a private corporation authorized to carry on research for the public benefit, if any such corporation exists, the fact that the money was earmarked fora “religious, charitable, educational or benevolent use ” would render inconsequential the circumstance that the corporation had also other objects which are selfish in purpose. (Miley v. Attorney-General, [1918] 1 Irish Rep. 455; Matter of Shattuck, supra.)

Judgment should be affirmed, with costs to respondents payable out of the estate.

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

Judgment affirmed, etc.


text:
    Garrett A. Goetschius, Respondent, v. Benjamin P. Brightman et al., Doing Business under the Firm Name of Rice Automobile Company, Appellants.
    Contract — conditional sales — title — statute declaring void reservations in contract of conditional sale as against subsequent purchaser in good faith, unless contract be filed, -not applicable to contract made in foreign State in regard to chattels there situated — innocent purchaser in this State of such chattels brought here without knowledge or consent of conditional vendor acquires no title.
    1. Section 62 of the Personal Property Law (Cons. Laws, eh.-41), providing that all conditions and reservations in a contract for the conditional sale of goods and chattels shall be void as against subsequent purchasers in good faith unless such contract be filed as directed, may not be interpreted so as to include attempted regulation of the validity of contracts made without the State in regard to property situated elsewhere. It should not be interpreted as an assertion and exercise of jurisdiction to regulate rights of property in chattels which are brought within the State without the knowledge or consent of the owner.
    (Argued April 6, 1927;
    decided May 3, 1927.)
    2. Where, therefore, a purchaser of an automobile in a foreign State, under a contract of conditional sale providing that title to the automobile should remain in the seller and that it should not be removed from the place of purchase until the purchaser had paid the price in full, without complying with the terms of the contract and Without the knowledge or consent of the seller, brings the automobile to this State and here sells it to an innocent purchaser for value, the latter acquires no title. Until the owner is in a position where he can protect his rights by filing, the validity of the conditions and reservation in the contract of sale, recognized by the common law, is not altered by the statutory provisions.

      Goetschius v. Brightman, 214 App. Div. 158, affirmed.
    . Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 30, 1925, reversing a judgment in favor of defendants entered upon a verdict and granting a new trial.

      J. Harris Loucks for appellants.
    The California conditional sale contract was void as to an innocent purchaser for value in New York State. (Saltus v. Everett, 20 Wend. 267; Commercial Bank v. Canal Bank, 239 U. S. 520; Duffus v. Howard Furnace Co., 15 Misc. Rep. 169; First Nat. Bank of Chicago v. Dean, 27 Abb. N. C. 281; Hervey v. R. I. Locomotive Works, 93 U. S. 664; Snider v. Yates, 64 L. R. A. 353; Judy v. Evans, 109 Ill. App. 154; Pulaski Mule Co. v. Haley & Koonce, 187 Ala. 533; Fuller v. Webster, 95 Atl. Rep. 335; Hart v. Barney, 7 Fed. Rep. 543; The Morena, 19 Fed. Rep. 760.) Equity estops the plaintiff from any claim against the defendants. (Crocker v. Crocker, 31 N. Y. 507; Thompson v. Blanchard, 4 N. Y. 303; Moore v. Metropolitan Nat. Bank, 55 N. Y. 44; Dows v. Kidder, 84 N. Y. 128; Jones v Commercial Investment Trust, 64 Utah, 151; New England Auto Investment Co. v. St. Germaine, 121 Atl. Rep. 398; Glass v. Continental Guaranty Corp., 81 Fla. 687; Gramm-Bernstein Motor Co. v. Todd, 209 Penn. St. 3; Anglo-California Trust Co. v. Pacific Acceptance Corp., 232 Pac. Rep. 489; General Motors Acceptance Corp. v. Boddeker, 274 S. W. Rep. 1016; Forgan v. Bridges, 281 S. W. Rep. 134; Emerson-Brantingham Implement Co. v. Faulkner, 241 Pac. Rep. 431.)

      Isadore Bookstein, Leo Levy and Daniel J. Dugan for respondent.
    The transaction between the original parties was a conditional sale. The contract was not required to be filed or recorded under the California law as it existed at the time of the making of said contract in order to make the reservation of title effective as against innocent third parties. This is the common law of California and was the common law of New York prior to the conditional sales filing legislation. (Oakland Bank of Savings v. California Pressed Brick Co., 183 Cal. 295; Tompkins v. Fonda Glove Lining Co., 188 N. Y. 261; Powers v. Burdick, 126 App. Div. 179; Williston on Sales, §§ 336, 337, 338; Mechem on Sales, § 583; Studebaker Bros. Co. v. Mau, 13 Wyo. 358; 14 Wyo. 68; Kimball & Co. v. Mellon, 80 Wis. 133; Knowlson v. Sprong, 10 Wkly. Dig. 81; Walker v. Mitchell, 25 Hun, 527; Comer v. Cunningham, 77 N. Y. 391; Maynard v. Anderson, 54 N. Y. 641; Moyer v. McIntyre, 43 Hun, 58.) The New York courts, according to the recognized rules of comjty, apply the California law as to the effectiveness of the reservation of title in the conditional vendor as against innocent third parties; such application is not in violation of our public policy. (Graves Elevator Co. v. Callanan, 11 App. Div. 301; Ohl & Co. v. Standard Steel Sections, 179 App. Div. 637; Nichols v. Mase, 94 N. Y. 160; Fairbanks v. Bloomfield, 5 Duer, 434; Studebaker Bros. Co. v. Mau, 14 Wyo. 68; Harper v. People, 2 Colo. App. 177; Baldwin v. Hill, 4 Kans. App. 168; Cleveland Machine Works v. Lang, 67 N. H. 348; Shapard v. Hynes, 104 Fed. Rep. 449; Greenville Nat. Bank v. Evans-Snider-Buel Co., 9 Okla. 353;
      Farmers’ & Merchants’ State Bank v. Sutherlin, 93 Neb. 707.)
   Lehman, J.

On January 8th, 1920, in the city of Albany, N. Y., the defendants purchased a used automobile from one C. W. Oesting, a resident of San Diego, California. The automobile had been delivered to Oesting in April, 1919, in San Diego, Cal., under a contract of conditional sale made with the Davies Overland Company, a California corporation, as seller. Under the terms of that contract it was stipulated that title to the automobile should remain in the seller until the buyer had completely carried out all the terms of the contract and paid the full purchase price. Oesting, the buyer, never paid the installments due under the contract. Though removal of the automobile from San Diego was prohibited under the terms of the contract, Oesting removed it to New York without the knowledge or consent of the seller.

The contract of conditional sale was made in California, between residents of California, and covered property that was situated in California, and by the terms of the contract might not be removed to another State. Under the law of California, title to personal property, reserved by a seller until the agreed price of the property has been fully paid by the buyer, is superior to any title that may be obtained from the buyer upon subsequent resale by him even to an innocent purchaser for value. Until the condition is complied with the seller may assert his title against the whole world, though the contract of conditional sale has never been filed.

The contract of conditional sale was never filed in California. It was never filed in New York. The defendants bought the automobile from the conditional buyer before the conditional seller knew that it had been removed to New York (Cons. Laws, ch. 41). Section 62 of the Personal Property Law as it existed at that time provided that all conditions and reservations in a contract for the conditional sale of goods and chattels * * * shall be void as against subsequent purchasers * * * in good faith, and as to them the sale shall be deemed absolute, unless such contract of sale * * * be filed as directed in this article.” Section 63 provided that the contract “ shall be filed in the city or town where the conditional vendee resides, if he resides within the state at the time of execution thereof, and if not, in the city or town where such property is at such time.”

The plaintiff is the assignee of the original California seller. He has replevined the automobile. The jury has found that the defendants are purchasers in good faith. The court at Trial Term has held that, under the provisions of the statute, upon the sale of personal property then situated within this State, a purchaser in good faith from one who has possession of the property under a contract of conditional sale which has not been filed here may acquire a title free from any conditions or reservations contained in such contract, even though in the State where the contract of conditional sale was made it was not necessary to file such contract in order to make it fully valid and enforcible. The Appellate Division has reached the opposite conclusion and has held that under rules of comity the law of the place where the contract of conditional sale was made should govern in the determination of the rights acquired by the defendants upon the purchase of the automobile in this State. We find that even if the rights acquired by a purchaser in good faith through purchase made here of personal property situated here were measured by the law of this State, yet under proper construction of the New York statute the defendants here have acquired no title or rights greater than those possessed by Oesting under the laws of California.

There can be no doubt that the interpretation and effect of the contract of conditional sale made in California between residents of California concerning personal property then situated in California and which the parties intended should remain in California must be governed by the law of California, at least in so far as the law of California is not contrary to our own public policy and law. Under the law of California the plaintiff’s assignor retained title to the automobile. Oesting, the buyer, obtained right of possession and what for the sake of convenience has been at times denominated, without entire accuracy, as an incomplete ” or “ defective ” title. In California he could not transfer to a third party a title he did not possess. That still rested in plaintiff’s assignor. Oesting removed the property to this State. The question is whether under the laws of this State he might give to a purchaser for value without notice a title free from the defects in his own title.

The State where personal property is situated may unquestionably regulate by its own laws the creation, transfer or enforcement of rights in such property. We may start consideration of the rights of these defendants in the automobile, which Oesting agreed to sell to them, with the premise that Oesting had no title which he could assert against the plaintiff’s assignor. It does not follow that the defendants could acquire no title superior to that of plaintiff’s assignor if by the laws of the State of New York a seller without title to personal property can confer title upon an innocent purchaser. No rule of comity requires this State to subordinate its public policy in regard to transfer made within the State of property situated here to the policy of the State where the owner of the property resides or where he acquired title. Whoever sends personal property to this State or consents to its removal impliedly submits to the regulations of this State concerning its transfer here. (Hervey v. R. I. Locomotive Works, 93 U. S. 664.) The rights of parties to transactions within the State in regard to property removed to the State with the consent of the owner may properly be governed by the law of the State. If by our law notice given by the owner, through record or otherwise, of title retained by him in chattels after he has parted with possession, is a prerequisite to assertion of such title against claims of third parties derived from transactions within the State with the holder of possession, then it has been held that failure to give such notice is not excused by the fact that notice is not required by the State where the owner is domiciled or where he acquired title. Regardless of his own title, the person in possession of the chattel can confer on another those rights, and perhaps those rights only, which by the law of the State where the chattels are situated and the transaction is consummated, may be derived from one in his situation. (See Marvin Safe Co. v. Norton, 48 N. J. Law, 410; Fuller v. Webster, 28 Del. [5 Boyce] 538; Cammell v. Sewell, 5 Hurlstone & Norman, 728; Hervey v. R. I. Locomotive Works, supra.)

Not in all jurisdictions have the courts applied this rule. In some jurisdictions the rights of a seller who has retained title under a contract of conditional sale are measured by the law of the place where his rights were created, even when asserted in other jurisdictions in which the law accords superior rights to creditors of, or purchasers from, a person in possession. (See Williston on Sales [2d ed.], section 339.) For the purpose of this appeal we may assume that at least as to chattels removed to this State, with the consent of the owner, the courts will measure the rights of those dealing here with the property by our own rules. Even so we find that the defendants have not acquired title to the automobile.

Here the automobile was removed without the consent of the plaintiff’s assignor. This court has said that “ an owner of property may not be divested of it without his consent, or by due process of law; plainly not by dealing with it by others without his knowledge, assent or procurement.” (Edgerly v. Bush, 81 N. Y. 199.) It may be that the State where property is found has power to regulate the manner in which right to it may be created or transferred, though the owner never consented to its removal to the State where it is found. At least we may say that exercise of that power is unusual. Unless a regulation of this State is plainly intended to apply to property brought here without the consent of the owner, it is clear that the courts should not extend the local rules so as to deprive the owner of those rights to his property which he possessed before the property was wrongfully removed. Distinction may perhaps be drawn between a case where the property is brought into the jurisdiction by wrongful act of the holder and where it is brought in by accident which had not been foreseen, as in the case of shipwreck. (See Cammell v. Sewell, supra.) Distinction may perhaps also be drawn where the owner has opportunity to reclaim the goods or to comply with a recording statute after he learns of the removal. In this State the Uniform Conditional Sales Act was adopted in 1922. It provides for recording of conditional sales "within ten days after the seller has received notice of the filing district to which the goods have been removed.” (Personal Property Law, section 74.) It has been held that the positive terms of the statute require the courts to apply the statutory rule though it defeats a title otherwise valid. (Thayer Mer. Co. v. First National Bank of Milltown, 98 N. J. Law, 29; affd., 98 N. J. Law, 907.) We need not now decide whether, when the question is presented to us, we shall reach similar conclusion.

In this case the question is not complicated by any special features. The automobile was brought to the State without the knowledge or consent of the original seller and in disregard of his rights. The defendants claim title through a transaction which was consummated before the seller had notice of the presence of the automobile here. We need not pass upon the power of the State to regulate rights of property in the automobile so brought here. We hold that it has not attempted to exercise such power by the provisions of the statute then in force.

At common law in this State, as in California, the title of a seller under a "contract of conditional sale could be enforced against ad the world. For the protection of subsequent purchasers the Legislature has enacted that conditions or reservations in such a contract are void against subsequen b purchasers unless the contract is filed. Common-law rights still exist here except as modified by the statute. Clearly the statute may not be interpreted so as to include, attempted regulation of the validity of contracts made without the State in regard to property situated elsewhere. It should not be interpreted as an assertion and exercise of jurisdiction to regulate rights of property in chattels which are brought within the State without the knowledge or consent of the owner. It provides for filing of contracts of conditional sale in the city or town “ where the conditional vendee resides or where the property is at the time. If the conditional vendee resides outside of the State and the property is not in the State, the contract cannot be filed. The statute has no application to a contract made under conditions which render compliance with the statute impossible. (Lane v. Roach’s Banda Mexicana Co., 78 N. J. Eq. 439.) At least until the owner is in a position where he could protect his rights by filing, the validity of the conditions and reservation in the contract of sale, recognized by the common law of California which is also in. effect in this State, except as modified by statute, is not altered by the statutory provisions. That is the only question we need now decide.

The order should be affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Andrews and O’Brien, JJ., concur; Kellogg, J., not sitting.

Ordered accordingly.


author: Pound, J.

text:
    The People of the State of New York ex rel. Joseph Lewis, Appellant, v. Frank P. Graves, Commissioner of Education of the State of New York, Respondent.
    (Argued May 3, 1927;
    decided May 10, 1927.)
    Constitutional law •— schools — mandamus — school regulations permitting children to be excused from attendance for short period each week to attend religious instruction not violative of Constitution or statute — peremptory mandamus to compel Commissioner of Education to direct discontinuance of practice properly denied.
    Regulations of the school authorities in the city of White Plains whereby children, on the written request of their parents, are excused, for one-half hour of the school session, in each week, for the purpose of attending religious instruction in church schools, do not, as matter of law, infringe any constitutional right or abuse any statutory requirement. Denominational schools are not thereby either directly or indirectly financially aided by the public. (N. Y. Const, art. 9, § 4.) Regular attendance does not imply actual attendance for the entire time the schools are in session. (Education Law, § 621.) An application, therefore, for a peremptory order of mandamus to compel the Commissioner of Education to direct the city school authorities to discontinue the regulations is properly denied. '

      People ex rel. Lewis v. Graves, 219 App. Div. 233, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 22, 1927, which unanimously affirmed an order of Special Term denying a motion for a peremptory order of mandamus to compel the Commissioner of Education to order the school authorities of the city of White Plains to discontinue school regulations whereby public school children, at the request of their parents, are excused one-half hour in each week before the termination of the regular school period to enable them to receive religious instruction in church schools.

      John C. Mahon for appellant.
    The rule adopted by the school authorities violates the constitutional provisions relative to aid in dénominational schools. (Stein v.

      Brown, 125 Misc. Rep. 692; People v. Board of Education of Brooklyn, 13 Barb. 400; State v. Scheve, 65 Neb. 853; State ex rel. Weiss v. District Board, 76 Wis. 177; Scofield v. School District, 27 Conn. 499; Smith v. Donahue, 202 App. Div. 656; O’Connor v. Hendrick, 109 App. Div. 361; 184 N. Y. 421.)

      Ernest E. Cole for respondent.
    The regulation complained of by the relator does not violate any constitutional provision. (Matter of Haydorn v. Carroll, 225 N. Y. 84; People ex rel. Curtis v. Kidney, 225 N. Y. 299; People ex rel. Mossy. Supervisors of Oneida County, 221 N. Y. 367.)

      Charles H. Tuttle, Pliny W. Williamson, George J. Gillespie and George W. Schurman for Greater New York Federation of Churches et al., amici curice.

    There is nothing in the State Constitution to prevent the local school boards from excusing children from school for religious instruction. (State ex rel. Weiss v. District Board, 76 Wis. 177; Hackett v. Trustees of Brooksville, 120 Ky. 608; Commonwealth ex rel. Wall v. Cooke, 7 Am. Law Rep. [Mass.] 417; State v. District Board, 156 N. W. Rep. 477; Hart v. School District, 2 Lane. L. Rev. 346; Stevenson v. Hangon, 7 Penn. Dist. Rep. 585; Billand v. Board of Education, 69 Kans. 53; Church v. Bullock, 109 S. W. Rep. 115; McCormick v. Burt, 95 Ill. 263; Moore v. Monroe, 64 Iowa, 367; Pfeiffer v. Board of Education, 118 Mich. 560; Donahue v. Richards, 38 Maine, 379; Witherson v. City of Rome, 152 Ga. 762; Evans v. Selma School, 222 Pac. Rep. 801; Nesle v. Hum, 1 Ohio N. P. Rep. 140; Spiller v. Woburn, 12 Allen [Mass.], 127.)
   Pound, J.

Persons interested in religious instruction of the children in the public schools of the State have recently inaugurated a plan which has been put in operation in the city of White Plains and, with varying details, elsewhere. As it operates in White Plains, the plan' is to excuse from school attendance children between the ages of seven and fourteen years, on the written request of parents, one day in each week, for the last half-hour of the school session, which is a study period, so that they may attend one of the several denominational church schools which give religious instruction during such period. The child so excused loses no school recitations and receives no credit for the work taken in the church school. The city of White Plains does not use public money to aid the church schools, although the co-operation between the public schools and the church schools requires a slight use of the time of the school teachers in registering and checking up excuses. The plan is governed by suitable regulations of the school authorities but does not rest on any legislative enactment. It must, therefore, be in harmony with the Constitution and laws of the State. If it is the courts have no further concern with it.

The petitioner herein, although not appearing to be a resident of the city of White Plains or a taxpayer therein, or the parent or guardian of a child affected by its school regulations, made a demand as a citizen of the State upon the Commissioner of Education to put a stop to this practice, not only in the city of White Plains but throughout the State and, on refusal of the Commissioner to comply therewith, applied to the courts for an order of peremptory mandamus to compel him so to act. The Special Term denied his application and the Appellate Division unanimously affirmed the order on the law and, as we shall assume, not in the exercise of discretion. He now appeals to this court without leave of the Appellate Division or of this court, claiming that under Civil Practice Act, section 588, subdivision 1, a constitutional question is involved and that his appeal is taken as a matter of right. The appeal directly involves the construction of article 9, section 4, of the Constitution of the State, quoted below within our decisions. The court below in order to make its decision must necessarily have so construed the Constitution as to uphold the regulations in question. (Matter of Haydorn v. Carroll, 225 N. Y. 84, 88.)

The provisions of the Constitution and laws which appellant invokes as imposing a clear legal duty on the Commissioner of Education to compel the school authorities of White Plains to take action are as follows:

Article 9, section 4, of the New York Constitution provides:

“ Neither the State nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.”

Section 621 of the Education Law (Cons. Laws, ch. 16) provides that every child within the compulsory school ages in proper physical and mental condition shall regularly attend upon instruction for the entire time during which the schools * * * are in session.”

A child otherwise regular in attendance may be excused for a portion of the entire time during which the schools are in session, to the extent at least of half an hour in each week, to take outside instruction in music or dancing ■without violating the provisions of the Compulsory Education Law, either in letter or spirit. Otherwise the word “regularly” as used in the statute would be superfluous. Practical administration of the public schools calls for some elasticity in this regard and vests some discretion in the school authorities. Neither the Constitution nor the law discriminates against religion. Denominational religion is merely put in its proper place outside of public aid or support. As a matter of educational policy, the Commissioner doubtless may make proper regulations to restrict the local authorities when the administration of the plan of week-day instruction in religion or any plan of outside instruction in lay subjects in his judgment interferes unduly with the regular work of the school.

The separation of the public school system from religious denominational instruction is thus complete. Jealous sectaries may view with alarm the introduction in the schools of religious teaching which to the unobservant eye is but faintly tinted with denominationalism. Eternal vigilance is the price of constitutional rights. But it is impossible to say, as matter of law, that the slightest infringement of constitutional right or abuse of statutory requirement has been shown in this case.

The order should be affirmed, with costs.

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

Order affirmed, etc.


author: Per Curiam.

text:
    In the Matter of the Claim of Leonora Shearer et al., Respondents, against The Niagara Falls Power Company, Appellant. State Industrial Board, Respondent.
    (Argued May 2, 1927;
    decided May 10, 1927.)
    Workmen’s compensation — master and servant — -intoxication as sole cause of accident — claim for compensation dismissed.
    A claim under the Workmen’s Compensation Law must be dismissed where the evidence points unerringly to the fact of intoxication as the sole cause of the accident.

      Matter of Shearer v. Niagara Falls Power Co., 217 App. Div. 812, reversed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 18, 1926, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law for the death of a foreman of ironworkers, who, while engaged in removing the steel work of a bridge, fell from a girder and was killed. Defendant claimed that the accident resulted solely from the intoxication of the decedent while on duty. (See 242 N. Y. 70.)

      Clarence R. Runals for appellant.
    There is no evidence supporting or tending to sustain the finding of the State Industrial Board that “ William Shearer, the deceased herein, was not intoxicated at the time the accidental injuries were sustained by him and his death was not caused solely by intoxication.” (Matter of Lorchitsky v. Gotham Folding Box Company, 230 N. Y. 8; Matter of Eldridge v. Endicott, Johnson & Co., 228 N. Y. 21; Matter of Woodruff v. Howes Const. Co., 228 N. Y. 276; Matter of Hansen v. Turner Const. Co., 224 N. Y. 331; Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326; Minerly v. Kingsbury Const. Co., 191 App. Div. 618.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondents.
   Per Curiam.

Order of Appellate Division affirming award of the State Industrial Board should be reversed upon the ground that the award is not supported by any evidence. The presumption arising from the provisions of section 21, subdivision 4, of the Workmen’s Compensation Act (Cons. Laws, ch. 67) that death did not result solely from intoxication has been thoroughly and completely rebutted by the employer. The evidence points unerringly to the fact of intoxication and to intoxication as the sole cause of the accident. (Matter of Case, 214 N. Y. 199.)

The order of the Appellate Division should be reversed and the claim dismissed, with costs against the State Industrial Board in the Appellate Division and in this court.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur; Kellogg, J., not sitting.

Ordered accordingly.


text:
    In the Matter of the Claim of Mary Hughes, Respondent, v. Trustees of St. Patrick’s Cathedral et al., Appellants. State Industrial Board, Respondent.
    (Argued May 2, 1927;
    decided May 10, 1927.)
    Workmen’s compensation — master and servant — notice — • heat prostration an accidental injury- — failure to give written notice of injury within time required by statute properly excused where verbal notice was promptly given and employer not prejudiced — award may be made after death of employee on claim already filed.
    1. Heat prostration is an accidental injury arising out of and in the course of the employment, if the nature of the employment is such that, it exposes the workman to risk of such injury.
    2. Actual knowledge of the accident at the time it occurred is not required to excuse failure to give written notice as required by section 18 of the Workmen’s Compensation Law (Cons. Laws, eh. 67) where it appears that verbal notice was promptly given and that the employer has not been prejudiced. In a death case prior notice of injury by the employee is not required under the section.
    3. An award for disability may be made after the death of the employee on the claim of disability on file at the time of death, without requiring the widow to file a new claim.

      Matter of Hughes v. Trustees of St. Patrick’s Cathedral, 218 App. Div. 796, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 3, 1926, unanimously affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law, for the death of claimant’s husband, a section boss in a cemetery, from alleged heat prostration.

      T. Carlyle Jones and Bernard J. Vincent for appellants.
    Before an award may be made in this case, it must be shown that the deceased worked under a special and increased hazard, unusual to the public in general. The evidence relative thereto does not warrant the finding made by the Board. (Lerner v. Rump Bros., 241 N. Y. 153; Murray v. Cummings Constr. Co., 196 App. Div. 903; 232 N. Y. 507; Schanzenbach v. Waldorf Astoria Hotel Co., 195 App. Div. 950; Hernon v. Holahan, 182 App. Div. 126; Bates v. Plattsburgh Gas & Elec. Co., 186 App. Div. 932; Gregorkiewicz v. Nat. Biscuit Co., 188 App. Div. 985.) The widow has never filed a claim for disability benefits. The Board may not, therefore, make an award to her for such benefits, notwithstanding the fact that her deceased husband filed one during his lifetime. (Chefty v. Hearn & Sons, 212 App. Div. 844; O’Esau v. Bliss Co., 186 App. Div. 556; Terry v. General Elec. Co., 232 N. Y. 120.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondents.
    The question in cases of heat prostration is as to whether the employee is subjected to a greater hazard than the public. (Murray v. Cummings Constr. Co., 196 App. Div. 903; 232 N. Y. 507; Donovan v. Ravenwood Paper Co., 216 App. Div. 777; King v. Ice Service Co., 34 St. Dept. Rep. 325; 217 App. Div. 708; Powell v. Town of Seneca, 34 St. Dept. Rep. 435; 217 App. Div. 711; Dibble v. Turner Constr. Co., 33 St. Dept. Rep. 156.) The employer was not prejudiced because verbal notice was given to the general foreman and superintendent. (Lutz v. Huffman & Co., 231N. Y. 622; Snow v. United States Railroad Administration, 209 App. Div. 308; 239 N. Y. 528.)
   Per Curiam.

1. Heat prostration is an accidental injury arising out of and during the course of the employment, if the nature of the employment exposes the workman to risk of such injury. (Matter of Madura v. City of New York, 238 N. Y. 214.) Although the risk may be common to all who are exposed to the sun’s rays on a hot day, the question is whether the employment exposes the employee to the risk. (Matter of Katz, 232 N. Y. 420.)

2. The employee did not give written notice of the injury within the time prescribed by section 18 of the Workmen’s Compensation Law (Cons. Laws, ch. 67). The State Industrial Board excused the failure on the ground that the employer was not prejudiced thereby, because verbal notice was given to the employer and the employer had actual knowledge of the accident within thirty days thereafter. The employer’s foreman testified that he understood the next day that the workman was taken home sick. A fellow employee testified that he notified the foreman the next day that the sickness was due to heat prostration. Verbal notice was, therefore, established. Actual knowledge of the accident at the time it occurred is not required where it appears that verbal notice is promptly given and the employer has not been prejudiced by the failure to give written notice. (Matter of Finch, 244 N. Y. 557.)

3. Section 18 of the Workmen’s Compensation Law does not require prior notice of injury by the employee in a death case. (Matter of O’Esau, 186 App. Div. 556; affd., 227 N. Y. 597.)

4. An award for disability may be made after the death of the employee. So far as Matter of Terry (232 N. Y. 120) holds to the contrary, section 33 of the law has been amended. (L. 1922, ch. 615.) The award was properly made on the claim of disability on file at the time of death without requiring the widow to file a new claim.

The order should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur; Kellogg, J., not sitting.

Order affirmed, etc.


text:
    John Kennedy et al., Respondents, v. James Butler, Inc., Appellant.
    (Argued May 3, 1927;
    decided May 10, 1927.)
    Libel — publication — distribution by corporation of libelous circular to managers of its retail stores a publication.
    The sending by defendant, a domestic corporation, to the managers of its retail stores throughout the city of New York, of a circular containing statements in reference to plaintiffs, which, if untrue, are libelous, constitutes a publication, and a complaint so alleging states a cause of action for libel. (Owen v. Ogilvie Publishing Co., 32 App. Div. 465, discussed.)

      Kennedy v. Butler, Inc., 219 App. Div. 712, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 2, 1927, which affirmed an order of Special Term denying a motion, by defendant, for judgment on the pleadings.

      Lilian Herbert Andrews and John H. Hogan for appellant.
    The letter containing the alleged libel was never published, and an action for libel must be based on a publication of the libel. (Owen v. Ogilvie Publishing Co., 32 App. Div. 465; Wells v. Belstrat Hotel Corp., 212 App. Div. 366; Central of Georgia R. Co. v. Jones, 18 Ga. App. 414.)

      John J. White, Jr., for respondents.
   Crane, J.

The Appellate Division has certified to us the question “ Does the complaint in this action state facts sufficient to constitute a cause of action? ”

The action is for libel. The complaint alleges that the defendant, a domestic corporation, wrote and caused to be sent to the managers of its retail grocery stores throughout the city of New York a circular which reads as follows:

Headquarters
December lsf, 1925
“ # 8080
To the Manager:—
“ On November 10th Edward Kennedy, who was employed in our store at 954 Second Ave., was shot and subsequently died. All Kennedy’s expenses while in the Hospital, his doctor bills and legitimate funeral expenses are being paid for by us. His mother, who fives in Ireland will receive suitable compensation' amounting to several thousand dollars.
“ We are giving you these facts because there are two brothers of Kennedy’s [meaning the plaintiffs] in the country who seem to be trying to make capital out of his death. We are informed that they [meaning the plaintiffs] are visiting our stores selling tickets for a benefit which they [meaning the plaintiffs] say is to be held in order to raise money to pay for his funeral expenses. This is entirely unnecessary and an imposition on your sympathy and good will.
Yours truly,
“ JAMES BUTLER GROCERY CO.”

This article, it was alleged, was false and untrue, and maliciously written and circulated to injure the plaintiffs.

That the statements contained in the circular are libelous, if untrue, is quite apparent. • The statements, however, are not actionable unless published to a third party. The point made by the, appellant is that it appears on the face of the complaint that the defamatory matter has not been published. Was the sending of this circular to the managers of the defendant’s various retail stores throughout the city of New York a publication of the libel?

The case of Prins v. Holland-North America Mortgage Co. (107 Wash. 206) held that the publication of a libel is the communication of defamatory matter to some third party and that there is no publication of a libelous letter written at the main office of a corporation and sent to its own branch office where it is read only by its own officers and agents. Such also was the ruling in Central of Georgia R. R. Co. v. Jones (18 Ga. App. 414). Both of these cases referred to a decision of the Appellate Division of the Supreme Court of this State (Owen v. Ogilvie Publishing Co., 32 App. Div. 465) which held that a letter having reference to the business of a corporation and containing libelous matter is not published within the meaning of the Libel Law when dictated by the manager of the corporation to his stenographer. It is to be noticed, however, that the opinion in that case concedes that there can be a publication of a libel by a corporation by reading the libeous matter to a servant of such corporation or delivering it to be read. It says: “ Where the duties devolved upon such servant are distinct and independent of the process by which the libel was produced, he might well stand in the attitude of a third person through which a libel can be published. But such rule may not be applied where the acts of the servants are so intimately related to each other as is disclosed in the present record and the production is the joint act of both.”

This decision, therefore, went no further than to hold that libelous matter bearing upon the work of the corporation, dictated to a stenographer, written out and signed, is not a publication thereof. Whether such a letter sent out to other employees would be a publication was not decided. The Ogilvie case did not come to this court and apparently is in conflict with the cases of Pullman v. Hill & Co., Ltd. ([1891] 1 Q. B. 524); Gambrill v. Schooley (93 Md. 48); Ferdon v. Dickens (161 Ala. 181) ; Nelson v. Whitten (272 Fed. Rep. 135). Newell in bis work on Libel and Slander speaks of the Gambrill decision as being the leading American case (4th ed. p. 242). (See, also, Odgers on Libel & Slander [5th ed.], p. 161.)

WTiether this court would uphold the ruling in the Ogilvie case or follow these other decisions we are not called upon to determine as the point is not here. A later case (Wells v. Belstrat Hotel Corporation, 212 App. Div. 366) referred to it. That corporate action confined within itself, although libelous in its nature but never circulated or distributed beyond the agents or servants taking such action, may not amount to a publication, see Senancour v. Societe La Prevoyance (146 Mass. 616); Landis v. Campbell (79 Mo. 433).

The alleged action of the defendant in this case goes much further. The circular was sent to the heads of the various stores throughout the city of New York, touching a matter which might appeal to their sympathy or good will. They were warned by the employer not to be imposed upon by the plaintiffs who were seeking to make capital out of the death of their brother by soliciting money. Here in our judgment was a publication. The defamatory matter was sent out and circulated by and in the name of the corporation after having been written by its employees.

Whether such a publication were privileged — a privileged communication — is another matter. Privilege presupposes publicity. The plea of privilege is unnecessary if there has been no publication. (Klinck v. Colby, 46 N. Y. 427; Bacon v. Michigan Central R. R. Co., 55 Mich. 224; Odgers on Libel & Slander [5th ed.], p. 636; Newell on Libel & Slander [4th ed.], pp. 617, 618; Carr v. Selden, 4 N. Y. 91; Mase v. Reilly, 206 App. Div. 434; Tierney v. Ruppert, 150 App. Div. 863, 866.)

The question certified should, therefore, be answered in the affirmative and the order appealed from affirmed, with costs.

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

Ordered accordingly.


author: Kellogg, J.

text:
    In the Matter of William J. Sloane et al., Composing the Firm of Sloane, Moller & Kraus, Respondents, against William E. Walsh et al., Constituting the Board of Standards and Appeals, Defendants, and Walton-Whyte Realty Co., Inc., Appellant.
    (Argued April 7, 1927;
    decided May 10, 1927.)
    New York city — building zones — resolution of Board of Standards and Appeals granting application for variation — resolution constitutes decision of Board— may not be disputed by evidence of oral statements of members of Board — certiorari to review action of Board properly dismissed.
    A resolution of the Board of Standards and Appeals of the city of New York which recites with sufficient clearness that petitioner made “ application on the theory of hardship ” for a variation from the requirements of the Building Zone Resolution so as to permit it to erect a garage in a business district, and that the Board resolved “ that the application be and it hereby is granted,” cannot be affected by showing that those who passed it did not in fact approve it, or were induced to concur therein for reasons which were not tenable. The resolution constituted the action of the Board (N. Y. Charter, § 719, subd. 5) and that action cannot be disputed by reference to oral statements made by those who concurred therein. This court may look only to the resolution and where, on so looking, it is found that the Board exercised the powers conferred upon it and legally varied the zoning resolution in petitioner’s favor, it must be held that an order of certiorari to review the action of the Board was properly dismissed.

      Matter of Sloane v. Walsh, 217 App. Div. 614, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1926, which reversed an order of Special Term dismissing a writ of certiorari, sustained said writ and vacated and set aside a determination of the Board of Standards and Appeals of the city of New York granting the application of the appellant herein for permission to erect a garage.

      Harold R. Medina, John Kadel and William F. McNulty for appellant.
    The reversal was predicated upon an improper interpretation of section 21 and upon an erroneous understanding of the grounds upon which the Board of Standards and Appeals granted the application. In determining the application on the grounds that it did the Board was properly exercising the discretion conferred upon it by the Building Zone Resolution. (People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; People ex rel. Smith v. Walsh, 211 App. Div. 205; Smith v. Walsh, 240 N. Y. 606; People ex rel. Facey v. Leo, 110 Misc. Rep. 516; 193 App. Div. 910; 230 N. Y. 602; People ex rel. McAvoy v. Leo, 109 Misc. Rep. 255.) In the absence of a positive showing that the Board of Standards and Appeals manifestly abused or arbitrarily exercised the discretion delegated to it, its determination must be sustained and the order of the Appellate Division reversed. (People ex rel. N. Y. & Queens Gas Co. v. McCall, 219 N. Y. 84; People ex rel. Smith v. Walsh, 211 App. Div. 205; 240 N. Y. 606; People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689; Matter of Goldenberg v. Walsh, 215 App. Div. 396; 242 N. Y. 576.)

      William Burr De Lacy and Bertram L. Kraus for respondents.
    The Board did not grant intervenor’s application under section 21. The action of the Board in granting the application under an attempted fusion of sections 7-g and 21 was highly improper and a gross abuse of discretion. (People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689.)
   Kellogg, J.

The Walton-Whyte Realty Co., Inc., the intervenor, appellant, is the owner of a vacant lot on the east side of Jerome avenue, in the city of New York, 350 feet south of the intersection of that avenue with East One Hundred and Eighty-first street. Both streets are. in a business district. The company applied to the Superintendent of Buildings, having jurisdiction, for a permit to erect and maintain on such lot a garage for the storage of more than five motor vehicles. The application was denied on the ground that the erection of such a garage in a business district was prohibited by the zoning resolution in force. (See art. II, section 4, subd. 15 of Amended Building Zone Resolution, adopted October 3, 1924.) Thereafter, the company made application to the Board of Standards and Appeals for a variation from the requirements of the resolution, under section 7 (g) and section 21 thereof, and for a permit to erect a garage in accordance with plans previously filed. The Board fixed the area which it deemed to be affected by the application and within which consents of owners of 80% of street frontage, under section 7 (g), might be filed. Thereafter, the appellant filed consents which on their face appeared to be the consents of the owners of 80% of all frontage affected. After various hearings the Board granted the application. Thereafter, the plaintiffs, certain owners of street frontage within the affected district, sued out an order of certiorari to review the action of the Board. The order was dismissed at a Special Term of the Supreme Court. Subsequently the Appellate Division, upon an appeal to it, reversed the order so made, sustained the. order of certiorari, and vacated the determination of the Board of Standards and Appeals which had granted the application for a variation of the resolution and for a permit to erect the garage in question.

The resolution adopted by the Board read in part as follows: “ Whereas, the applicant, having complied with specific rules and regulations as laid down by the Zoning Regulations under rules of exceptions affecting an application under Section 7 (g) and in support of this application on the theory of hardship, Section 21 (being the fee owner of the property), irrespective of the subsequent withdrawal of consents after the presentation of the appeal, Resolved, that the Board of Standards and Appeals does hereby make a variation in the application of the use district regulations of the Building Zone Resolution, and that the application be and it hereby is. granted.”

Section 7 (g) of the Building Zone Resolution provides that the Board of Appeals may in appropriate cases, after hearings duly had, vary the application “ of the use district regulations ” as follows: “ (g) Permit in a business or residence district the erection of a garage provided the petitioner files the consents duly acknowledged of the owners of 80 per cent of the frontage deemed by the Board to be immediately affected by the proposed garage.” It is conceded that at the first hearing before the Board there were on file written consents signed by persons who at the time of signing were the owners of 80% of the frontage affected. The point was made that one of the owners so signing had parted with his title prior to the filing of the consents. The evidence upon that point is not satisfactory. An officer of a corporation which was one of the consenting owners filed an affidavit in which he stated that “ to the best of my knowledge and belief ” the consent of the corporation was filed subsequent to the time of the sale of said premises.” However, neither the date of the filing, nor the date of the sale, was given in evidence. Counsel for one of the objectors was asked: “ You admit that the applicant has filed 80% consents? ” and he replied: “ There was, but some of the consents were withdrawn.” It is conceded that a number of 'consents were subsequently withdrawn so that, at the time when the Board passed the resolution, there were on file consents of the owners of but 68% of the frontage. The appellant nevertheless contends that its original filing of consents of those pwning 80% of the frontage was sufficient under section 7 (g); that the case was one where the petitioner had complied with the condition expressed in the section, viz., “ provided the petitioner files the consents ” of the owners of the necessary frontage; that this is especially true since the Board had proceeded to act upon the consents filed by hearing the case of the parties; that the Board, having taken jurisdiction of the subject-matter, could not have lost jurisdiction through the subsequent withdrawal of consents. There may be force in the argument. However, as it is based upon the premise that there were" on file, at the date of the first hearing, the consents of those then owning 80% of the frontage, and that premise has not been clearly established, we refrain from expressing our views upon the question, preferring to rest our decision upon another ground.

The resolution adopted by the Board is somewhat crudely expressed. Nevertheless, it appears with sufficient clearness that a recital is therein made of the fact that the petitioner made “ application on the theory of hardship,” under section 21, “ irrespective of the subsequent withdrawal of consents after the presentation of the appeal.” The Board resolved “ that the application be and it hereby is granted.” Thus, on the face of the resolution, it clearly appears that the Board intended to execute the power .vested in it by section 21. That section, in part, provides as follows: Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this resolution the Board of Appeals shall have power in a specific case to vary any such provision in harmony with its general purpose and intent, so that the public health, safety and general welfare may be secured and substantial justice done.” It sufficiently appears that the case was one where there may have been “ practical difficulties ” and unnecessary hardships ” in carrying out the zoning resolution in its ■strict letter, so that the Board, in its discretion, exercising the power conferred by section 21, might well have concluded to vary the resolution and grant the application-. That it was such a case is hardly in dispute. The point that the respondents press is that the Board, as shown by the statements made by some of those voting for the resolution, expressed concurrently with its passage, did not in fact determine that there were “ hardships ” presented so that under section 21 the application should be granted. That was the point made by the Appellate Division in reversing the action of the Board of Appeals. We do not think the point well taken. The Greater New York charter, in section 719, subdivision 5, thereof, provides, in relation to decisions by the Board of Standards and Appeals, as follows: “ The decision shall be in writing and shall be filed in the office of the board and promptly published in the bulletin of the board.” The resolution of the Board, concededly passed, was, therefore, not merely the written evidence of the action of the Board. It was in itself the action and decision of the Board. Professor Thayer says: “Another discrimination to be observed is that between documents which constitute a contract, fact, or transaction, and those which merely certify and evidence something outside of themselves,— a something valid and operative, independent of the writing.” (Preliminary Treatise on Evidence, p. 393.) Professor Wigmore says: “ Where by law an act is required to be done in writing, i. e. is ineffective unless so done, the writing is of course the only permissible subject of proof. It is immaterial what the person intended; his act must be in the writing and must be judged by the-writing alone.” (Wigmore on Evidence, section 2427.) Again, in the same section, he says: “ In general, then, where an official writing represents the act itself of the officer, it is an instance of the present principle of integration.” Again, in section 2478, he says: “A statute is an act of expression by a legislative body; and, as a legal act, it presents the same problems as to intention, integration, form, and interpretation, as other legal acts.” Dillon says: “It is well settled that the judicial branch of the government cannot institute an inquiry into the motiyes of the legislative department in the enactment of laws.” (Municipal Corporations, section 580.) This court, in People ex rel. Bolton v. Albertson (55 N. Y. 50 at p. 54) said: Every intendment is in favor of the validity of statutes; and no motive, purpose or intent can be imputed to the Legislature, in the enactment of a law, other than such as are apparent upon the face, and to be gathered from the terms of the law itself.” This court has expressed itself similarly in reference to ordinances or resolutions adopted by the legislative boards of municipalities. (Kittinger v. Buffalo Traction Co., 160 N. Y. 377.) It is not questioned that the resolution under consideration was adopted by the Board of Standards and Appeals. Nor is it seriously questioned that the resolution on its face grants an application made under section 21. The respondents merely question the mental concurrence therein of members of the Board who in fact voted yes when the resolution was on passage. They seek1 to destroy the effect of the resolution by showing that those who passed it did not in fact approve it, or were induced to concur therein for reasons which were not tenable. The resolution constituted the action of the Board. That action cannot be disputed by a reference to the oral statements made by those who concurred therein. We can look only to the resolution, and, so looking, we find that the Board exercised the powers conferred upon it by section 21, and legally varied the zoning resolution, in petitioner’s favor.

The order of the Appellate Division should be reversed and the order of the Special Term, dismissing the order of certiorari, should be affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Crane, Andrews and Lehman, JJ., concur; O’Brien, J., not sitting.

Ordered accordingly.