author: Desmond, J.

text:
    The People of the State of New York ex rel. Walter J. Marks, Appellant, against Joseph H. Brophy, as Warden of Auburn Prison, Respondent.
    Submitted October 13, 1944;
    decided November 30, 1944.

      Walter J. Marks, appellant in person.
    I. Appellant is entitled to all the time served on parole from October 26, 1935, to March 8, 1939. (United States ex rel. Moore et al. v. Traeger, 44 F. 2d 312; In re Johnson, Petitioner, 167 U. S. 120; Covell v. Heyman, 111 U. S. 176; Taylor v. Taintor, 83 U. S. 366; Abelman v. Booth, 21 How. 506; Grant et al. v. Guernsey, 63 F. 2d 163; Adamy v. Parkhurst, 61 F. 2d 517; Mackenzie v. Barrett, 141 F. 964; Cozart v. Wolf, 185 Ind. 505; State v. Freauff, 177 Ore. 214; Correction Law, §§ 213, 241.) II. The crime of using the mails to defraud in violation of section 338 of title 18 of the United States Code (Code Crim. Pro., § 215), and the crime of conspiracy in violation of section 88, title 18 of the United States Code (Code Crim. Pro., § 37), do not constitute a conviction of a felony within the purview of the laws of the State of New York and sections 219 and 242 of the Correction Law are not applicable in such a case as there was no conviction of a felony. (United States v. Zeuli, 137 F. 2d 845; People v. Collins, 234 N. Y. 355; People v. Gutterson, 244 N. Y. 243.)

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Patrick R. Clune, John W. Barnell and George A. Bads of counsel), for respondent.
    I. Appellant was convicted of a crime which, if committed within the State of New York, would be a felony. The basic element or ingredient of the scheme concocted by appellant and his associates was the forging of checks and sending them by mail to Tennessee for payment. These ■ acts, namely, the uttering of a forged instrument and the making of a written instrument purporting same to be the act of another which creates a pecuniary demand or obligation, are forgeries and felonies within our penal statutes. (Penal Lawr, §§ 881, 887; People v. Stovali, 172 Misc. 469; People v. Fury, 279 N. Y. 433.) II. Appellant forfeited the time spent on parole by his conviction for a crime which would be a felony if committed in New York State. (People ex rel. Cecere v. Jennings, 250 N. Y. 239; People ex rel. Kleinger v. Wilson, 254 App. Div. 406; People ex rel. Gariti v. Brophy, 255 App. Div. 823.)
   Desmond, J.

In 1930 relator was sentenced by the County Court of Erie County to serve a definite ten-year sentence in Auburn State Prison. In 1935, after he had been in confinement under that sentence for exactly five years, he was released therefrom and came under the supervision of the State Board of Parole. At the time of that release and before leaving prison he signed a ‘ ‘ parole agreement ’ ’, one of the provisions of which we shall discuss hereafter. In April, 1939, relator was declared delinquent ” as of March 8,1939, by the Board of Parole, because of his arrest on the latter date, by United States authorities. That arrest was pursuant to an indictment, found against him by a Grand Jury in a Federal District Court in Tennessee charging crimes committed during the period while he was on parole. The Federal indictment charged relator, and others, with the crime of using the United States mails to defraud, and, in another count, with the crime of conspiring so to use the mails. Both those crimes are felonies under the laws of the United States. (U. S. Code, tit. 18, §§ 88, 338 and 541.) Relator pleaded guilty to both counts of the indictment, was sentenced to a term of imprisonment and a fine, and was thereupon! confined in a Federal penitentiary under that sentence until December 20, 1941. On that date he was released from the Federal penitentiary and returned to one of our State prisons to serve whatever part remained unexecuted of the sentence imposed on him by the County Court in 1930. Relator claims, as against that ten-year sentence, credit not only for the five years served by him in State prison before 1935, but also for the period of three years, four months and eighteen days which elapsed while he was under supervision of the Parole Board before his delinquency. On that basis he computes that when he was returned to State prison in 1941, he had only one year, seven months and thirteen days left to serve and so should have been released in August, 1943. Refused such release, he brought this proceeding.. He was defeated in both courts below, and we granted him leave to appeal to this court.

The State has, so far successfully, urged that relator, by his 1939 delinquency which consisted of his Federal conviction, forfeited, and lost all credit for, the time during which he was under parole supervision. As justifying such a forfeiture, the State points to the agreement signed by relator at the time of his release in 1935. In that agreement it is, among other things, stipulated that if relator should, while on párole, commit and be convicted of a felony, either in New York State or any other state,” he would be compelled to serve in a State prison, “ the portion remaining ” of his original ten-year sentence “ from the time of such release on parole to the expiration ” of that ten-year sentence. The question to be decided, the parties here agree, is as to the meaning and application to these facts, and effect, of the language of that agreement: “ a felony, either in New York State or any other state ”.

The record does not show clearly by whose authority, under what particular law or for what reason relator was released in 1935, nor by whose authority or under what law there was presented to him the “ parole agreement ” above quoted from. Both the petition and answer in this proceeding assert that he was “ released on parole by the State Parole Board ”. The State’s brief on this appeal tells us that relator was “ released on parole following a reduction in his sentence by the Governor pursuant to Section 242 of the Correction Law.” That section directs the Governor, when reducing a sentence, to annex certain conditions. One of these mandated conditions under that statute is that if the released prisoner, during the remainder of the term for which he was sentenced, shall be convicted of a felony within this State or of a “ crime under the laws of any other state, government, or country, which if committed within this state would be a felony ” he shall forfeit all credit for the time during which he is under parole supervision. That section 242 was in effect when relator was released in 1935, but it does not necessarily follow that it was, or could be, authority for the imposition of the condition found in relator’s parole agreement ” (see People ex rel. Ingenito v. Warden, etc., Auburn Prison, 267 App. Div. 295, affd. 293 N. Y. 803). We note that the statute in effect in 1930, when relator was first sentenced, former section 243 of the Correction Law, contained different language. That statute provided for a forfeiture of time on parole in the event of a conviction of any felony,” without any specific reference to a situation where a released prisoner might be adjudged guilty of a felony under the laws of another State or country. However, it is probably not important to choose between the two statutes. The words “ any felony,” used in the older section (243) were construed by this Court in 1928 in People ex rel. Atkins v. Jennings (248 N. Y. 46) to mean the same thing as the language now found in section 242. Atkins had been released by the Governor upon the express condition that he should be returned to prison and should serve out the whole remainder of his sentence without reduction if he should, while on parole, be convicted of “ any felony ”. Atkins was convicted of a larceny in Michigan, served a term in a Michigan prison, and was then brought back to New York. It did not appear whether or not the Michigan larceny had been a felony under Michigan laws. This court, construing “ any felony ” said (248 N. Y. at page 52): “ if the offense for which relator was convicted [in Michigan] would be cognizable by our laws as a misdemeanor or not at all, it cannot be included in the standard of crime that the Governor had in mind when the sentence was commuted.” Thus it is that “ any crime ” as used in the old section, 243 of the Correction Law, meant no more or less than did the new statute (present section 242 of that Law) when the latter provided for a forfeiture for a felony conviction in this State or for a conviction elsewhere of a crime which would be a felony under our laws if committed in this State.

We are not holding, however, that either old section 243 of the Correction Law, in effect in 1930, or new section 242, in effect in 1935, applies to the situation shown in this record. Both those sections describe the conditions to be imposed by the Governor who alone has the power to reduce definite or “ straight ” sentences. The Parole Board’s powers as to ordering reductions and releases have to do only with indeterminate sentences. (See Correction Law, §§ 223, 241.) Prisoners released by the Governor are, upon such release, turned over to the Parole Board for supervision (Correction Law, §§ 241 and 242), but the Parole Board does not control such releases or the conditions thereof. Applying the presumption of regularity, however, we think it a fair solution of this difficulty, or seeming difficulty, to assume that the condition imposed on relator in the 1935 agreement, was so imposed by act or authorization of the Governor.

A commutation by the Governor may be on a condition that the commutation granted by the Governor will be forfeited for misbehavior. (See People v. Burns, 77 Hun 92, 95, affd. on opinion below 143 N. Y. 665; Ex Parte: William Wells, 59 U. S. 307, State Const, art. IV, § 4.) It is, therefore, no argument against the validity of the condition agreed to by this relator in 1935 — that he should forfeit his time on parole if he should commit and be convicted of a felony either in New York State or any other state ” — that there was no precise statutory authority for just that form of condition. It was a valid condition, nonetheless, under the Governor’s constitutional powers. We must therefore examine into its meaning as applied to the facts of this case.

The Atkins case (248 N. Y. 46, supra), held that when the Governor of this State in 1914 decreed that a released prisoner should forfeit his commutation if convicted of any felony,” the Governor referred only to a conviction of a crime described in our laws as a felony. We think the Governor who in 1935 ordered that this relator should suffer a similar forfeiture if convicted of a felony, either in New York State or any other state ” meant the same thing. It is fundamental in the public policy of this State that we do not, if we can avoid it, decree forfeitures in our courts because of violations of the criminal laws of another jurisdiction. (See Sims v. Sims, 75 N. Y. 466; Loucks v. Standard Oil Co., 224 N. Y. 99, 102; People v. Gutterson, 244 N. Y. 243; Matter of Cohen, 278 N. Y. 584; Matter of Donegan, 282 N. Y. 285, cf. People v. Gennaro, 287 N. Y. 657.) That policy, given effect by this court as to released prisoners in the Atkins case [supra), has since been specifically made a matter of legislation, as to such parolees, in sections 219 and 243 of the present Correction Law. We think consistency requires that the parole agreement signed hy this relator in 1935 should be construed so as to require a forfeiture only in the event of relator’s conviction of a crime known to our laws as a felony. The crimes adjudged by the Federal courts against this relator (using the mails to defraud and conspiring so to do) are crimes unknown to our State Penal Law and not cognizable at all in our State courts. (People v. Gutterson, supra; Matter of Donegan, supra.) They are crimes cognizable only by the laws of the United States ” (Guttersori opinion, p. 250).

The State says, however, and the lower courts have held in this case, that People v. Fury (279 N. Y. 433), is, somehow, authority to the contrary. We do not agree. People v. Fury, unlike People v. Gutter son (supra), involved a prior conviction where the same offense (uttering a counterfeit Federal Reserve bank note) was a felony both under the Federal Criminal Code and under our Penal Law. Fury was held to be a second offender not on the basis of a previous conviction of a crime described only in the laws of another jurisdiction hut because he had been previously convicted in another jurisdiction of a crime declared to be a felony in our own statutes.

This relator did, of course, violate other terms of his 1935 agreement when he fell afoul of the Federal criminal laws and so was properly returned to State prison to serve the remainder of his sentence. But he did. not violate the only provision of that agreement which called for a forfeiture of time on parole, for its violation. Thus he did not forfeit that parole time and should have been given credit for it when he was returned to prison in this State. With such a credit, his ten-year sentence was fully served in August, 1943. He should have been released then, and must he released now.

The orders should be reversed, the writ sustained, and the Warden ordered to release relator from custody.

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

Orders reversed, etc.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    In the Matter of Anna Matson, an Inmate of Brooklyn State Hospital. Clarence H. Bellinger, as Superintendent of Brooklyn State Hospital, Appellant. Brooklyn City Safe Deposit Company et al., Respondents.
    Argued October 10, 1944;
    decided November 30, 1944.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd. Louis E. Cooper and Saul A. Shames of counsel), for appellant.
    I. In the absence of knowledge as to the nature and extent of the property of an inmate confined to a State institution, the court would be in no position, in a proceeding for the appointment of a committee, to determine (1) whether there is sufficient property to justify the appointment of a committee; (2) what the amount of the committee’s bond should be; or (3) what provision to make for the maintenance and education of the inmate. The inspection authorized by the statute is, therefore, not only reasonable but essential for the proper protection of the inmate’s rights. (Matter of Andrews, 192 N. Y. 514; Moore v. Flagg, 137 App. Div. 338; Matter of Baekeland, 266 App. Div. 1012; Matter of Wiesenberg, 253 App. Div. 655; Matter of Ackermann, 226 App. Div. 811; Montana Company v. St. Louis Mining &c. Co., 152 U. S. 160.) II. Section 51-a of the Mental Hygiene Law does not violate any provision of the Federal or State Constitutions, and is a valid exercise of the police power of the State. Specifically, there is no violation of (1) the due process or equal protection clauses, (2) the prohibition against unreasonable searches and seizures, or (3) the contract clause. (Matter of Fay, 291 N. Y. 198; Montana Com

      pany v. St. Louis Mining &c. Co., 152 U. S. 160; Headley v. City of Rochester, 272 N. Y. 197; Anderson Nat. Bank v. Luckett, 321 U. S. 233; Hurtado v. California, 110 U. S. 516; Stebbins v. Riley, 268 U. S. 137; Bryant v. Zimmerman, 278 U. S. 63; Buck v. Bell, 274 U. S. 200; People v. DeCesare, 220 Mich. 417; Boyd v. United States, 116 U. S. 616; Carples v. Cumberland Coal and Iron Co., 240 N. Y. 187; Sporza v. German Savings Bank, 192 N. Y. 8; Matter of Evans v. Berry, 262 N. Y. 61; Chamberlin, Inc., v. Andrews, 271 N. Y. 1; Home Bldg.. & L. Assn. v. Blaisdell, 290 U. S. 398; Manigault v. Springs, 199 U. S. 473; Matter of People [Tit. & Mtge. Guar. Co.], 264 N. Y. 69; Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437.)

      Ralph W. Crolly and William H. Orr for respondents.
    Special Term correctly held that section 51-a of the Mental Hygiene Law violates section 10 of article I and Amendment XIV of the Federal Constitution and sections 6 and 12 of article I of the State Constitution. (People ex rel. Equitable L. Assur. Soc. v. Pierce, 104 Misc. 343; Brayman v. Grant, 130 App. Div. 272; Finch v. Goldstein, 245 N. Y. 300; Hoff v. State of New York, 279 N. Y. 490; Matter of Stephanis, 250 App. Div. 253; People ex rel. Klesitz v. Mills, 179 Misc. 58; Sullivan v. Whitney, 25 N. Y. S. 2d 762; Quarterman v. Quarterman, 179 Misc. 759.)
   Lewis, J.

A direct appeal (Civ. Prac. Act, § 588, subd. 4) brings to us for review an order of Special Term which declared unconstitutional section 51-a of the Mental Hygiene Law (L. 1942, ch. 747, § 2).

The proceeding arose from the following facts: In- accord with a commitment order by a Justice of the Supreme Court dated October 19, 1943, the respondent, Anna Matson, became a patient at Brooklyn State Hospital, an institution maintained by the State under the jurisdiction of the Department of Mental Hygiene. The fact appears of record — without denial in the patient’s behalf by the attorney designated by Special Term to represent her — that the condition of the said patient is poor, she is confined to bed and that there is no possibility of a parole being considered or contemplated.”

Six years prior to her commitment the patient had rented a safe deposit box from the respondent Brooklyn City Safe Deposit Company under a written lease conditioned as follows: “1. No person other than the Renter or registered Attorney, or legal representative (in case of the death, insolvency, or other disability of the Renter), shall have access to a safe.”

On March 2, 1944, the Superintendent of the State Hospital petitioned the Supreme Court for an order under section 51-a of the Mental Hygiene Law directing the Safe Deposit Company to permit an authorized representative of the Department of Mental Hygiene to open the patient’s safe deposit box and, in the presence of an officer or representative of the Safe Deposit Company, to make an inventory of its contents and copies of any papers contained therein. The petition also recited the failure by the hospital superintendent to find next of kin of the patient and stated the purpose of the application to be to discover <£ any property owned by the said inmate * * * which would warrant the making of an application for the appointment of a committee ”.

Following the granting of such application ex parte the Safe Deposit Company, upon notice to the Attorney-General and to the patient, secured at Special Term the order, now before us, which vacated the prior ex parte order directing that the patient’s safe deposit box be opened and its contents inventoried. Such vacatur was ordered upon the ground that section 51-a of the Mental Hygiene Law violates the following constitutional provisions: the clause in the Federal Constitution which forbids enactment by a State of a law impairing a contract obligation (art. I, § 10); the clause in the State Constitution which forbids unreasonable search and seizure (art. I, § 12) and the due process clause in the Federal Constitution (Amendt. XIY) and that of the State (art. I, § 6).

The challenged statute provided, prior to its amendment by section 29 of chapter 666 of the Laws of 1944: “ § 51-a. Discovery of property warranting application for appointment of committee. For the purpose of discovering property owned by any patient or inmate of a state institution in the department which would warrant the making of an application for the appointment of a committee for such patient or inmate, the supreme court or a justice thereof and a county court or a judge thereof, upon the duly verified application of the superintendent of the institution wherein such patient or inmate is confined, made without notice or upon such notice to such persons or corporations as such court, justice or judge may require, whereby it is satisfactorily shown that a bank, trust company, safe deposit company, or other person, firm or corporation has in its or his possession or under its or his control papers belonging to such patient or inmate or that such patient or inmate has leased a safe deposit box or that he had access to a safe deposit box which may contain papers and property belonging to him, may make an order directing such bank, trust company, safe deposit company, or other person, firm or corporation to permit such superintendent or a duly authorized representative named in the order to examine and make an abstract of any such papers and to open, examine and make an inventory of the contents of any such safe deposit box in the presence of an officer or representative of such bank, trust company, safe deposit company or other person, firm or corporation.”

We do not think the jurisdiction thus given' to courts and judicial officers designated in the statute violates either Federal or State Constitution. The language of the Act does not permit of a deprivation of property without due process of law. What is due process in a procedure affecting property interests must be determined by taking into account the purposes of the procedure and its effect upon the rights asserted and all other circumstances which may render the proceeding appropriate to the nature of the case.” (Anderson Nat. Bank, v. Luckett, 321 U. S. 233, 246.) By the statute here involved no seizure of property is authorized. Within the narrow limits of authority fixed by the Act and in accord with the language employed, which is declaratory of its purpose, the statute permits no more than the discovery of property. If, as in the present case, a patient’s safe deposit box is the subject of discovery, an inspection of its contents is authorized for the purpose of ascertaining property therein which may warrant the appointment of a committee. An inspection so limited in scope is not a denial of due process." (Headley v. City of Rochester, 272 N. Y. 197, 205; Montana Company v. St. Louis Mining &c. Co., 152 U. S. 160, 169; Anderson Nat. Bank v. Luckett, supra, 246-7.)

Nor does the statute conflict with the prohibition in the State Constitution against “ unreasonable searches and seizures ”. Here, the inspection authorized is in aid of a civil proceeding which was designed to conserve any property which might be possessed by an incompetent. In the circumstances disclosed by the present record such an inspection, as we view it, is not an unwarranted intrusion and is in no sense “ unreasonable (Carples v. Cumberland Coal & Iron Co., 240 N. Y. 187, 193-4.)

We also find ourselves in disagreement with the ruling at Special Term that to proceed with discovery under the statute in question will impair the obligation of the contract between the patient and the Safe Deposit Company. The Legislature has devised a statutory scheme to control the person and safeguard the property of an incompetent. In Article 5 of the Mental Hygiene Law are provisions designed to accomplish the care and treatment of incompetents. In Article 81 of the Civil Practice Act are provisions vesting in the courts jurisdiction of the custody of the person and the care of the property of a person incompetent to manage himself or his affairs. (§ 1356.) In exercising its jurisdiction the court “ * * * must preserve [an incompetent’s] property from waste or destruction; and, out of the proceeds thereof, must provide for the payment of his debts and for the safe keeping and maintenance, and the education, when required, of the incompetent person and his family.” (§ 1357.) The court’s jurisdiction is exercised through a committee of either the person or property, or both, of the incompetent, such committee being required to furnish a fidelity bond before entering upon the performance of his duties. (§§ 1358,1358-a, 1375, subds. 1,4.) Where, as in the present case, the incompetent person is a patient in a State institution under an order of commitment by a court the petition for the appointment of a committee may be presented by the superintendent of the institution where the incompetent is confined. Such petition must contain among other data the name and residence of the next of kin of the incompetent living within the State, so far as known to the petitioner, and a statement of ‘ ‘ the nature, extent and income of his property, so far as the same is known to the petitioner, or can with reasonable diligence be ascertained by him.” (§ 1374, subds. 1, 2.)

In the proceeding at bar the record warrants the assumption that the condition of the respondent inmate is such that there is no possibility of her parole being considered; that the petitioner has been unable to locate her next of kin and that she has the right of use, under a written lease, to a safe deposit box maintained by the respondent Safe Deposit Company.

Those circumstances were presented by the petitioner in this proceeding to a ■ court which, as we have seen, is under the statutory duty to preserve an incompetent’s property from waste or destruction and, out of the proceeds thereof, must provide for the payment of her debts and for her maintenance. (Civ. Prac. Act, § 1357.) We think those circumstances made appropriate the exercise by Special Term of the jurisdiction granted by section 53-a of the Mental Hygiene Law as a means of ascertaining what property, if any, the patient’s safe deposit box contains. If property is there of sufficient value to warrant such action, the petitioner may apply for the appointment of a committee. (Civ. Prac. Act, § 1374, subds. 1, 2, 5-a.) If the value of the contents does not exceed $500 such contents may be turned over to the director of the State institution where the patient is confined, without the appointment of a committee. (Mental Hygiene Law, § 34, subd. 14.) In either event we regard the discovery sought by this proceeding as an appropriate and essential step in the ascertainment and preservation of the patient’s property for the benefit of her estate and as a source of reimbursement to the State for care and maintenance afforded her. The inspection sought, being in the public interest, it may not be said that its accomplishment will violate the contract clause of the Federal Constitution. Upon its consideration of that principle the Supreme Court of the United States has ruled — “ It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected.” (Manigault v. Springs, 199 U. S. 473, 480.) That principle was given expression by Chief Justice Hughes in the later case of Home Bldg. & L. Assn. v. Blaisdell (290 U. S. 398, 437-438): “ The economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts. * * * The question is not whether the legislative action affects contracts incidentally, or directly or indirectly,' but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end.” (See, also, Matter of People (Tit. & Mtge. Guar. Co.), 264 N. Y. 69, 84.)

The principles of law which were determinative of issues, presented1 in Finch v. Goldstein (245 N. Y. 300), and Matter of McGuinness (290 N. Y. 117), are not decisive in the case at bar where a different problem is presented. ;

The order should be reversed and the motion by the respondent, Brooklyn City Safe Deposit Company, to vacate the order of Special Term herein, dated March 2, 1944, should be denied,: with costs in all courts. :

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

Order reversed, etc.


text:
    In the Matter of the Estate of Brewer D. Phillips, Deceased. Bank of Jamestown, as Executor of Brewer D. Phillips, Deceased, et al., Appellants; Lewis C. Merrill, as Administrator of the Estate of Anna H. M. Phillips, Deceased, Respondent.
    Argued October 3, 1944;
    decided November 30, 1944.

      Philip Halpern, Louis L. Jaffe, John E. O’Donnell, Clive L. Wright and Walter H. Edson for appellants.
    I. There was no question of fact on the issue of fraud warranting submission of that issue to the jury. The Surrogate correctly directed a verdict against the petitioner. II. The agreement was fair and reasonable on its face. (Juhasz v. Juhasz, 134 Ohio St. 257; Taber v. First Citizens B. & T. Co. of Utica, 247 App. Div. 580, 273 N. Y. 539.) III. Where the antenuptial agreement makes adequate provision for the wife, no presumption of fraud arises. (In re Whitmer’s Estate, 224 Pa. 413; In re Groff’s Estate, 341 Pa. 105; Juhasz v. Juhasz, 134 Oh. St. 257; In re Koeffler’s Estate, 215 Wis. 115; Jones v. McGonigle, 327 Mo. 457; Rolfe v. Rolfe, 125 Me. 82.) IV. The antenuptial agreement was based upon a good consideration and was binding and effective. It barred the right of election under § 18 of the Decedent Estate Law. (In re Moore, 165 Misc. 683, 254 App. Div. 856, 280 N. Y. 733; Clark v. Clark, 28 Hun 509; De Cicco v. Schweizer, 221 N. Y. 431; In re McGlone, 258 App. Div. 596, 284 N. Y. 527.) V. The fact that Mrs. Phillips’ release was subject to a condition subsequent does not affect its validity. The condition subsequent having been complied with, the release remained in full force and effect. (Matter of Young v. Hicks et al., 27 Hun 54, 92 N. Y. 235.) VI. The testamentary trust satisfied the ante-nuptial agreement.

      William J. Barch, W. Travis Look and George W. Watson for respondent.
    I. The facts proved by petitioner clearly raised a presumption of constructive fraud, imposition and overreaching, on the part of the decedent surrounding the execution of the alleged antenuptial agreement. The Appellate Division properly held that the direction of a verdict, and the denial of the motion for a new trial, were érrors in law. (Barnard v. Gantz et al., 140 N. Y. 249; Pierce v. Pierce, 71 N. Y. 154; Graham v. Graham, 143 N. Y. 573; Haack v. Weicken, 118 N. Y. 67; Eaton v. Eaton, 233 Mass. 351; Irving Trust Co. v. Bay, 314 U. S. 556; Matter of McGlone, 258 App. Div. 596; Matter of Smith, 243 App. Div. 348; Matter of Will of Smith, 95 N. Y. 516; Sarasohn v. Kamaiky, 193 N. Y. 203.) II. Even if the ante-nuptial agreement could be deemed valid in its inception, Phillips, during coverture, committed material breaches of that agreement which have released his widow therefrom. (Eaton v. Eaton, 233 Mass. 351; Krell v. Henry, 2 K. B. 740; Blackburn Bobbin Co. v. Allen [1918], 1 K. B. 540; Marks Realty Co. v. Hotel Hermitage Co., 170 App. Div. 484; Matter of People [Bond & Mortgage Guar. Co.] 267 N. Y. 419; Berkowitz v. Brown, 3 Misc. 1.) III. At most, Phillips acquired from Mrs. Phillips only an option or conditional right to obtain a release or waiver of rights in his estate by setting up a trust for her. No such trust was ever set up, and consequently Mrs. Phillips is entitled to assert her statutory right of election. (Heller v. Pope, 250 N. Y. 132; Lee v. Woodward, 259 N. Y. 149; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Portuguese-American Bank v. Welles, 242 U. S. 7; Noble v. Higgins, 214 App. Div. 135, 243 N. Y. 538; Jacob & Youngs v. Kent, 230 N. Y. 239; Van Iderstine Co., Inc., v. Barnett L. Co., Inc., 242 N. Y. 425; Matter of Matthews, 255 App. Div. 80; Matter of Fowler, 263 App. Div. 255, 288 N. Y. 697; Matter of Wentworth, 230 N. Y. 176; Matter of Trumble, 199 N. Y. 454; Wells v. Squires, 117 App. Div. 502, 191 N. Y. 529.) IV. The antenuptial agreement having been executed before September 1, 1930, by persons who were not spouses, cannot be deemed a waiver or release of the widow’s elective right. (Matter of Moore, 165 Misc. 683, 254 App. Div. 856, 280 N. Y. 733.) V. Even if paragraph 9 of section 18 of the Decedent Estate Law included agreements between persons who were not spouses, the agreement in evidence cannot be deemed to defeat the right of election, because it contains no release or waiver of all petitioner’s rights, as required by the statute. (Matter of Legar, 147 Misc. 286; Matter of Epstein, 176 Misc. 494; Matter of Moore, 165 Misc. 683, 254 App. Div. 856, 280 N. Y. 733; Matter of Bommer, 159 Misc. 511; Thompson v. Thompson, 163 Misc. 946; Matter of Schmidt, 171 Misc. 95, 257 App. Div. 827, 282 N. Y. 787.)
   Lewis, J.

Brewer D. Phillips died testate on January 30, 1941, at the age of eighty-three years. Within a month thereafter his widow, Anna Hi Merrill Phillips, then eighty-one years of age, was adjudged incompetent. She died on May 7, 1943. In the meantime, on April 14, 1941, during the intervening period of her incompetency, her committee instituted the present proceeding to establish her right by election under section 18 of the Decedent Estate Law to take an intestate share of her deceased husband’s estate against the provisions of his will.

In its answer to the committee’s petition the executor of the deceased husband’s will alleged as an affirmative defense the existence of an antenuptial agreement executed by the incompetent in 1921 in which she agreed conditionally that she would not contest her husband’s will and would make no claim against his estate. The validity of that contract became the chief issue when the petitioner, by his reply, admitted that the incompetent had signed the antenuptial agreement but alleged that it was insufficient in law to bar her statutory right of election as a surviving’ spouse; that the agreement was not valid because its execution was procured by fraudulent representations by Mr. Phillips and by undue influence exerted by him; that the agreement had been breached by him during his lifetime by inducing his wife to convey certain property to him. These issues, except the last, were reduced to framed questions which were the subject of a jury trial in County Court. At the close of that trial the petitioner withdrew the issue of undue influence and a verdict was directed against the petitioner on the issue of fraud and deceit. Subsequently the Surrogate tried the remaining issues without a jury and reached the conclusion that the petitioner had failed to prove acts by Mr. Phillips which served to breach the antenuptial agreement. He also ruled that the agreement itself was sufficient in law to bar the statutory right of election by the incompetent as a surviving spouse. Upon appeal to the Appellate Division the Surrogate’s decree dismissing the petition herein was reversed on the law and the facts, two Justices dissenting; certain findings adverse to the petitioner’s position were reversed and the Surrogate was directed to enter a decree sustaining as valid the election made by the committee in behalf of the incompetent.

When the Legislature by section 18 of the Decedent Estate Law (L. 1929, ch. 229, as amd. by L. 1930, ch. 174) created the right in a surviving husband or wife to elect to take an intestate share against the will of a deceased spouse it provided in subdivision 9 of that statute for the release or waiver of that right by a written agreement which might be “ * * * made before or after marriage.” The same subdivision 9 contains the further provision — ‘ ‘ An agreement so executed made before the taking effect of this section wherein a spouse has waived or released all rights in the estate of the other spouse shall be deemed to release the right of election granted in this section.” Referring to the sentence last quoted above, it has been said that — “ The purpose of this new sentence was to give legal recognition to an agreement by which a husband or wife had waived all rights in the estate of the other spouse in an instrument executed before September 1, 1930.” (Matter of Moore, 165 Misc. 683, 687, affd. 254 App. Div. 856, 280 N. Y. 733.)

The legal effectiveness of an antenuptial agreement, such as the one here involved, which antedated section 18, was thus preserved as a means to bar the new statutory right of election— provided the agreement in its inception was free from fraud and overreaching and was valid by common-law standards.

In the antenuptial agreement with which we are concerned are recitals, simply phrased, which set forth the facts that prompted the proposed arrangement and clearly manifest the intention of the two parties. The agreement provides in part:

“ Whebeas, the parties to this Instrument are both over the age of 60 years, and each have (sic) been married heretofore, and the husband of the said Anna H. Merrill heretofore died, and also the wife of the said Brewer D. Phillips died over a year ago, and each are now widow and widower, respectively, and contemplate inter-marrying, and
“ Whebeas, each have (sic) children by their former spouses, and it is the desire of each to thus inter-marry and leave .the question of property not as a matter of Law, but as a matter of agreement — that is, as per the terms following herein.
“ Thebefobe, in consideration of the premises, of the said marriage if consummated, and One Dollar ($1.00) to her in hand paid, receipt of which is hereby acknowledged, the said Anna H. Merrill agrees to and with the said Brewer D. Phillips that in the event of his death leaving a Last Will and Testament, that she will not contest said Will, nor make any claim to his Estate whatsoever; that it shall be the same so far as the parties to this Instrument are concerned as if he had died leaving no widow him surviving, even in the event of her surviving him.
“Provided, however, that by the terms of his Will or otherwise there shall be set aside at least the sum of Thirty Thousand Dollars ($30,000), the use and income of which shall be paid to her at least as often as once in each six months during the time that she remains the widow of the said Brewer D. Phillips, or in the case of his dying intestate, that the .heirs of the said Brewer D. Phillips will set apart to her by proper Instrument in writing signed by all the heirs, the said sum of at least $30,000.00 to be turned over to some bank, as Trustee, the Bank to be chosen by the said heirs of the said Brewer D. Phillips —■ the income from which shall be thus paid to her during her widowhood, at her death or marriage said $30,000.00 to become the property of the said heirs, and further that she does hereby grant and convey to the heirs or devisees of the said Brewer D. Phillips all her right of dower in and to any real estate of which he may die seized, and that she will execute any deed transferring such right Of dower, providing the use of at least said $30,000.00 is made available to her during widowhood, and for that purpose employers (sic) the said heirs of the said Brewer D. Phillips, or any one of them, as her lawful attorney irrevocable to execute such conveyance.
Likewise, for the same consideration, and in consideration of the said agreement upon the part of Anna H. Merrill above set forth, the said Brewer D. Phillips does hereby agree to and with the said Anna H. Merrill that he will make no claim to her estate in case that he survives her of any name or nature whatsoever, and hereby relinquishes any tenancy by courtesy in and to any real estate in her name, and for that matter hereby conveys the same to the devisees of the Will, or the heirs of the said Anna H. Merrill, as the case may be, authorizing them, or any of them, in case of his refusal to execute a deed of the same, to sign, acknowledge and deliver such deed in his name, place and stead without any other or further consideration than the promise and agreement upon the part of the said Anna H. Merrill above set forth, to the end that it shall be the same as if the parties to this action had not married.
# ’ # * * # * *
Provided always, that there be available for the use of the said Anna H. Merrill the income from at least said sum of $30,000.00 so long as she shall remain the widow of the said Brewer D. Phillips.
“ Further, and carrying out the true intent of this Agreement, the said Anna H. Merrill does authorize and empower the said Brewer D. Phillips as her true and lawful attorney irrevocable to sign her name to any deed to real estate during coverture upon .any deal of real estate owned by Brewer D. Phillips.
Further agreed, that such Powers of Attorney herein expressed will be executed separately, so it will be absolutely unnecessary to record this Instrument prior to the death of either party.
“ Isr witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written.”

The agreement was executed June 10, 1921, under seal. In addition to the acknowledgment by each party of the giving and receiving of consideration there are formal recitals anticipating the marriage of the parties and in- relation thereto mutual covenants which import consideration sufficient in law. (De Cicco v. Schweizer, 221 N. Y. 431, 438-439; Clark v. Clark, 28 Hun 509; Cochran v. Taylor, 273 N. Y. 172, 178-184.)

We regard the agreement as fair and reasonable on .its face. There is no evidence that facts were concealed or misrepresented by either party which motivated the arrangement intended. Nor is there evidence wffiich suggests that when the agreement was executed — more than nineteen years before Mrs. Phillips was adjudged incompetent — she failed fully to understand its terms or that her action in executing it was induced by her fiance’s deceit. There is no evidence that at the time the agreement was made the provision for the incompetent was disproportionate to the means of her intended husband. The condition inserted for her benefit — that her husband by his will or otherwise would provide a fund of $30,000 to afford her an income while she remained his widow — was fulfilled. A careful scrutiny of the record discloses no instance when she complained of the conduct of Brewer D. Phillips either before her marriage to him or during her life as his wife for nearly twenty years and there is no proof of fraud or overreaching at any time on his part. Indeed, as we view the record there is no evidence that the antenuptial agreement was breached by either party. On the contrary, the record points unerringly to the conclusion that the agreement served the intended, purpose of the two parties concerned with its fulfillment.

Given those circumstances as a basis for our decision we cannot accept the respondent’s argument that, regardless of the fairness and reasonableness of the agreement, it is burdened by a presumption of fraud arising from the confidential character of the relation of the parties.

Knowing that there are considerations of public policy which cluster about contracts that touch the marriage relation ” (De Cicco v. Schweizer, supra, p. 439), we read chapter 174 of the Laws of 1930 — amending section 18 of the Decedent Estate Law— as an expression by the Legislature of public policy which gives approval to antenuptial agreements made prior to 1930 and thereafter. To ascribe to such an agreement inherent fraud without regard to the fairness of its provisions and the reasonableness of the purpose to be accomplished or to the circumstances in which the agreement was proposed, is not, we think, in line with such public policy. True it is that parties to an antenuptial agreement stand in a relation of mutual confidence which calls for good faith of a high standard in disclosing those circumstances which are relevant to the contemplated arrangement. As a consequence, where such an ¡agreement becomes the subject of litigation, the courts will ¡exercise rigid scrutiny as those circumstances are examined. ■But, in the absence of proof of facts from which concealment ¡or imposition may reasonably be inferred, fraud will not be presumed. (In re Whitmer’s Estate, 224 Pa. 413; In re Groff’s Estate, 341 Pa. 105; Juhasz v. Juhasz, 134 Ohio St. 257, 264-5; !In re Koeffler’s Estate, 215 Wis. 115, 123-125; Jones v. McGonigle, 327 Mo. 457.) Such a presumption must have as its basis evidence of overreaching — the concealment of facts, misrepresentation or some form of deception. It was that type of evidence upon which rested the decisions in Pierce v. Pierce (71 N. Y. 154), and Graham v. Graham (143 N. Y. 573). We find no evidence of that character in the record now before us.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, without costs. (See 294 N. Y. 662.)

Lehman, Oh. J., Loughran, Rippey, Conway, Desmond and Thacher, JJ., concur.

Ordered accordingly.


author: Rippey, J.

text:
    Roden Lightbody et al., Copartners under the Name of Lightbody Brothers, Respondents, v. William Russell, Doing Business as Long Island Potato Exchange, Appellant. Chester Bowles, as Price Administrator of the Office of Price Administration, Intervener.
    Argued October 3, 1944;
    decided November 30, 1944.

      Otho 8. Bowling for appellant.
    The complaint does not state a cause of action. (Emergency Price Control Act of 1942, U. S. Code, tit. 50, § 925, subd. [e]; Senate Report No. 931, 77th Cong., 2nd Sess., p. 8; OPA Service 11, 804; Commerce Clearing House, War Law Service, Price Control, par. 42, 402-416; Bowles v. Empire Packing Co., OPA Service, 620: 351; 4 Commerce Clearing House War Law Service, Price Control, par. 51,074; U. S. v. Amer. Trucking Ass’ns, 310 U. S. 534; Sommer v. Kelly Co., 182 Misc. 157.)

      Sol Rubin for respondents.
    The courts below correctly held that plaintiffs may maintain this action. (Zwang v. A. & P. Food Stores, 181 Misc. 375; Johnson v. Southern Pacific Co., 196 U. S. 1.)

      Paul L. Ross, Fleming James, Jr., and Werner Usen for Chester Bowles, as Price.Administrator of the Office of Price Administration, amicus curiae.

    I. The Administrator is entitled to recover. (Bowles v. Rock, 2 OPA., OP. & Dec. 2065; Bowles v. Chew, 53 F. Supp. 787; Bowles v. Empire Packing Co., 1 OPA Op. & Dec. 1059; OPA Serv. pp. 620:351; Sommers V. E. B. Kelly Co., Inc., 47 N. Y. S. 2d 57; Bowles v. American Stores, 139 F. 2d. 377.) II. The administrative interpretation of the statute under which the agency operates is entitled to great weight. (United States v. Amer. Trucking Ass’ns, 310 U. S. 534; White v. Winchester Club, 315 U. S. 32; Colgate-Palmolive Peet Co. v. United States, 64 S. Ct. 227.)
   Rippey, J.

Plaintiffs are copartners, engaged in New Bochelle, N. ¥., under the firm name and style of Lightbody Brothers, in the business of the moving and storage of personal property. In their complaint they allege that heretofore and on or about the 18th day of May, 1943, the defendant sold to plaintiffs and the plaintiffs purchased of the defendant, at Huntington, Long Island, New York, one Mack Tractor, 1938, Model E. J., Serial #E. J. ID H 1035, Motor #898, for use by these plaintiffs as the ultimate consumer ” and that defendant delivered the second-hand tractor to them upon the receipt of the sum of twenty-five hundred dollars which was the agreed price thereof. They further allege that the ceiling and maximum lawful price for the sale of the tractor was eight hundred and six dollars and forty cents as fixed by the regulations of the Office of Price Administration then in force and that, as a result of the transaction, they were damaged by the difference between the ceiling price and the sum paid to defendant. They sue for and claim to be entitled to recover from defendant treble damages by virtue of the terms of the applicable statute then in force.

The statute under which the plaintiffs brought this action and must recover, if they are entitled to recover at all, is section 205, subdivision (e), of the Emergency Price Control Act of 1942, which, at the time this action was commenced, read as follows: “ If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is. the greater, plus reasonable attorney’s fees and costs as determined by the court. * * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer is.not entitled to bring suit or action under this subsection, the Administrator may bring such action under this subsection on behalf of the United States. * * * ” (Emergency Price Control Act of 1942, U. S. Code, tit. 50, Appendix, § 925, subd. [e]). (Italics supplied.)

After this action was commenced, the foregoing statute was amended by section 108 (subd. [b]) of the Stabilization Extension Act of 1944 (Pub. Laws No. 383, ch. 325) so as to give the Price Administrator of the Office of Price Administration a right to sue if the consumer failed to assert his cause of action within thirty days. By section 108 (subd. [c]) of the same act, that amendment is not retroactive and does not affect any question to be decided here.

The statute gives plaintiffs a cause of action in the circumstances set forth in the complaint only where the commodity is sold at a price in excess of the prescribed ceiling or maximum price and purchased by them for use or consumption other than in the course of trade or business They cannot bring the suit or successfully maintain a cause of action unless they allege and prove that they purchased the tractor for use or consumption other than in the course of their trade or business. That allegation and proof of the fact is a statutory condition to the cause of action. The statute contains the exception as the foundation of a cause of action and plaintiffs fail to state a case since they do not negative the exception (People v. Bradford, 227 N. Y. 45; 41 Am. Jur., Pleading, §§ 92-94; 3 Carmody’s New York Practice, § 928; Baylies Pleading with Practice & Forms, p. 74).

An allegation that plaintiffs are the “ ultimate consumer ” does not meet the test. The plaintiffs might be the ultimate consumer even though they purchased the tractor for use in the course of trade or business or, -in other words, for a commercial use. There is no express reference in the statute to the ultimate consumer. It is correctly pointed out in the dissenting opinion in the court below that the statute quite naturally divides purchasers of commodities coming within its terms into two classes — those who purchase for use in the course of their trade or business, that is, for a commercial use, and those who purchase for use or consumption other than in the course of their trade or business, namely, for a non-commercial use. Each is an ultimate consumer. But it will be noted that the statute confers a cause of action upon the purchaser from a violator of the price regulation only in the event that he is in the latter class. In that connection it may be noted that the Price Administrator, who is charged with the duty of administration of the Emergency Price Control Act, has officially interpreted the phrase “ in the course of trade or business ” as applying to purchases by industrial and commercial consumers as well as to purchases for a resale and in general to buyers engaged in commercial activity for profit (C. C. H. War Law Service, Price Control, Par. 42,402.16). His interpretation is entitled to great weight (U. S. v. Amer. Trucking Ass’ns, 310 U. S. 534, 549). That the foregoing construction conforms to the intent of the Congress in enacting the legislation is indicated by the Senate and House Committee Reports (Senate Report No. 931, 77th Cong. 2nd Sess. p. 8; 88 Congressional Record, Vol. 88, Part I, p. 664, Jan. 26, 1942; Conference Report on Emergency Price Control .Act of 1942, 77th Cong. 2nd Sess. 1942, House Report No. 1658 pp. 26-27). Such reports are relevant and open fo- use in the aid of construction and a determination of congressional intent. (Woollcott v. Shubert, 217 N. Y. 212, 221-222; Matter of Hamlin, 226 N. Y. 407, 414-415).

Nor may the complaint be sustained by transposing the words “ in the course of trade or business ” as used in the statute so that they would qualify the word11 buys ’ ’ rather than the words use or consumption ”. Such a rewriting of the statute would change its plain meaning and purpose.

In view of the conclusion that the complaint fails to state facts sufficient to constitute a cause of action it becomes unnecessary to pass upon the question as to whether the second defense is sufficient in law upon its face

The orders should be reversed and the complaint dismissed, with costs in all courts and the first question certified should be answered in the negative. The second question certified is not answered.

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

Orders reversed, etc.


text:
    In the Matter of the Claim of Fred Matise, Appellant, against Munro Waterproofing Co., et al., Respondents. State Industrial Board, Respondent.
    Argued October 18, 1944;
    decided November 30, 1944.

      Frank A. Rossini for appellant.
    Since claimant was concededly partially disabled during the period of the award, and there is no finding or evidence of bad faith on his part or refusal to accept work offered, his earning capacity is his actual earnings. (Matter of Santo v. Symington Machine Co., 237 App. Div. 242, 262 N. Y. 653; Matter of Smith v. Tonawanda Paper Co., Inc., 238 App. Div. 690; Matter of Sammis v. Queens Borough Gas & Electric Co., 257 App. Div. 58.)

      William B. Davis and E. C. Sherwood for Munro Waterproofing Co., and another, respondents.
    I. The Industrial Board correctly determined the claimant’s reduced wage earning capacity for the period covered by the award. II. The Industrial Board was not, under the circumstances of this case, bound to find that the claimant’s earning capacity was the sum he was actually earning during the period covered by the award. (Matter of Smith v. Tonawanda Paper Co., 238 App. Div. 690; Matter of Sammis v. Queens Borough Gas & Elec. Co., 257 App. Div. 58.)
   Rippey, J.

Upon sufficient evidence, the State Industrial Board found on September 18, 1943, that claimant received accidental injuries on August 5, 1940, which arose out of and in the course of his employment, all of which injuries were permanent and equivalent to a one-sixth permanent loss of the use of the left arm, and that the disability therefrom was total until May 27, 1941, and thereafter partial to December 16, 1942, the date of the last hearing. It was further found by the Board that from such injuries and their resultant consequences and effects his wage earning capacity for such period of permanent partial disability was reduced to 50% of his former full time earnings which entitled him to a compensation weekly rate of $17.95 based on a payroll report showing average earnings of $53.85 per week during the year prior to the accident. The Board made an award accordingly and continued the case on the Referee’s calendar for further consideration. The decision of the Board has been unanimously affirmed.

The finding as to claimant’s 50% reduced earning capacity was based exclusively, according to the Board, upon medical evidence ”. The shortened record on appeal seems to contain no such evidence. However, for the purpose of our decision, we assume, without further consideration, that there was evidence from physicians from which the Board might draw an inference to that effect.

During the period of permanent partial disability, actual earnings were $17.00 per week. Claimant urges that his wage earning capacity should have been determined by his actual earnings and not by a theoretical rate of possible earning capacity based upon inferences from such “ medical evidence ” or otherwise. Had his contention been sustained by the Board, as it was by the Referee, his compensation rate should have been fixed at $24.56 per week, which was two-thirds of the difference between his actual weekly earnings during the period of the award and his average weekly earnings during the year preceding the accident.

When the disability is partial in character but permanent in quality, the statute provides that the compensation during the period of disability shall be 66%% of the difference between the claimant’s average weekly wages and his wage earning capacity thereafter in the same employment or otherwise (Workmen’s Compensation Law, § 15, subd. 3, par. [v]). In construing that provision, this court pointed out in Matter of Jordan v. Decorative Co. (230 N. Y. 522, 526) that cases where the award is measured by the difference between wages and capacity (Workmen’s Compensation Law, § 15, subds. 3 and 4) should not be confused with cases where the act prescribes a fixed and certain limit, irrespective of the tendency of the individual to rise above or fall below it (Workmen’s Compensation Law, sec. 15, subds. 1, 2, 3) ”.

It was there held that in the former class of cases, evidence of actual earnings during the period of disability was not the sole admissible evidence of wage earning capacity” and a similar holding was also made in Becker v. General Electric Co. (210 App. Div. 495) and Matter of Vogler v. Ontario Knife Co. (223 App. Div. 550). There was then no fixed legislative rule by which the compensation rate must be fixed by the Board in cases of permanent partial .disability compensable under that provision of the statute or limitation upon the amount to. be awarded except that found in that subdivision of section 15 and in subdivision 6. Those sections are still in effect but in 1930 (L. 1930, ch. 316, § 2, in effect July 1,1930) the Legislature added subdivision 5-a to section 15 which first established a rule by which wage earning capacity ” must be determined in cases where there was permanent partial disability and the amount of compensation to be awarded was not otherwise definitely fixed, in these words: The wage earning capacity of an injured employee in cases of partial disability shall be determined by his actual earnings, provided, however, that if he has no such actual earnings the industrial board may in the interest of justice fix such wage earning capacity as shall be reasonable, but not in excess of seventy-five per centum of his former full time actual earnings, having due regard to the nature of his . injury and his physical impairment ”.

Since the addition to the statute, where claimant has no actual earnings the Board may still take and consider evidence of capacity and fix a reasonable compensation rate if not in excess of 75% of the former full time actual earnings of the injured employee (Matter of Sammis v. Queens Borough Gas & Elec. Co., 257 App. Div. 58). But where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period, as part of the formula by which the compensation rate is determined (Matter of Santo v. Symington Machine Co., 237 App. Div. 242; Matter of Smith v. Tonawanda Paper Co., Inc., 238 App. Div. 690; Matter of Dalberth v. Iuppa & Battle Co., 262 N. Y. 537).

It appears that before the accident, claimant had worked for the Munro Waterproofing Company for twelve or thirteen years. Sometime after the accident he tried to resume work at his old job. His uncontradicted testimony was that he was unable to work in the same employment as before the accident and that he sought and secured the best job otherwise and the highest wages that his disabled condition after the injury would permit. There was no claim, evidence or finding that he had been offered suitable work at higher wages and had refused it or that he could secure or carry on any other work or that any other job at which he would be able to work with safety to himself and others with higher wages was available.

The order of the Appellate Division should be reversed and the determination of the State Industrial Board annulled, and the matter remitted to the State Industrial Board for an award in accordance with the decision of the Beferee, with costs to the claimant in all courts.

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

Ordered accordingly.


author: Conway, J.

text:
    In the Matter of the Claim of Helen T. Renee, Appellant; Edward Corsi, as Industrial Commissioner, Respondent.
    Argued October 10, 1944;
    decided November 30, 1944.

      Paul N. Turner and Rebecca Brownstein for appellant.
    I. The claimant was engaged in full time employment. (Employment Commission v. Los Angeles Downtown Publishing News Corporation, 59 A. C. A. 612; Board v. Hearst Publications,

      Inc., 322 U. S. 111.) II. Claimant was available to accept employment for which she was fit by training and experience. (California Employment Commission v. Los Angeles Downtown Shopping News, 59 A. C. A. 612.)

      Nathaniel L. Goldstein, Attorney-General (Francis R. Curran and Orrin G. Judd of counsel), for respondent.
    Claimant was ineligible for benefits as a matter of law. (Matter of Scatola, 257 App. Div. 471; Matter of Eckler, 261 App. Div. 313, 286 N. Y. 662; Matter of Purdue, 265 App. Div. 1028; Matter of Perroto, 266 App. Div. 811.)
   Conway, J.

There is presented to us for construction the term part time worker ” as contained in 1942 in Labor Law, article 18, entitled “ Unemployment Insurance Fund,” section 502, subdivision 1. Subdivision 1 defined the term employment ” and then excepted from it (5) Employment as a part time worker of any person actually in regular attendance during the day time as a student in an institution of learning. ’ ’

The claimant was born in 1926, and has been a professional actress since she was twelve years of age. Prior to that time, at the age of ten, she had entered a dramatic school in New York City. From at least 1938, she had attended a second school known as “ The Professional Children’s School ” in New York City. That school offers a complete grammar and high school course to children engaged in some form of theatrical work. The school year commences in September and continues until the end of May on five days each week between the hours of ten in the morning and two-fifteen in the afternoon. When students are unable to attend by reason of conflicting rehearsal hours, their absence is excused and their work mailed to them. That is true also when children are away on tour. If need be, they may take their examinations while away from the school. In 1941, the claimant was employed for twenty-one weeks by two producing corporations and her total earnings exceeded $1,000. She appeared in six evening and two afternoon performances each week. She was required to, and did in fact, appear at the theatre at least one-half hour before each performance and remained subject to call throughout the performance. She appeared in each act of the play, the total time of her appearance on the stage being about forty minutes. There is a finding that the services rendered did not differ in any respect from those rendered by adult performers. There are no issues of fact involved. The sole question is whether the claimant was engaged in “ employment ” within the meaning of the statute or was a part time worker and thus excepted from it": operation.

The article creating an Unemployment Insurance Fund (an. 18) was added to the Labor Law by chapter 468 of the Laws of 1935. In that statute there was no exclusion of part time workers from the term" employment ” as there defined. Accordingly, in Matter of Scatola (282 N. Y. 689), we held that a route carrier of newspapers, a minor, was an employee and entitled to unemployment benefits. Thereupon, in 1939, by section 1 of chapter 662 of the Laws of 1939, it was provided:

But for the purposes of this article, * employment ’ shall not include: * * *
(5) Employment as a part time worker of a minor under the age of twenty-one years who is actually in regular attendance during the day time as a student in an institution of learning.” (Underscoring supplied.) Then in Matter of Eckler (286 N. Y. 662), we held that minor students at an institution of learning who were newspaper carriers were excluded from the classification employment ” by reason of that amendment. In 1940, by chapter 799 of the Laws of 1940, the word “ minor ” was omitted from the statute and the words “ any person ” were substituted.

The present case arises under the language of that amendment. The Industrial Commissioner relies largely upon Matter of Purdue (265 App. Div. 1028), and Matter of Perroto (266 App. Div. 811). Ill the Purdue case, the claimant, a regular daytime student in high school, appeared as a choir boy in a play entitled ‘ ‘ The Man Who Came to Dinner, ’ ’ which was produced in New York City. It was correctly held that he was not in a covered employment. The record in that case shows that the claimant admitted that he was not actively seeking employment because it would interfere with his studies, although he said he would accept work if similar working conditions were offered. Further, it was not required that he be at the theatre before 3:30 p. m. In the instant case, the Contract Secretary of the Actors Equity Association pointed out that Purdue was what is known as a professional “ walk-on,” was actually on the stage one and one-half minutes, was not under an Actors Equity Contract, and did not seek further employment because it would interfere with his studies. In other words, he was not a professional actor, as is the claimant here. In the Perroto case, the claimant was a pin boy in a bowling alley, working from six o’clock to midnight on four nights during the week, and from noon until one a. m. on Saturdays and Sundays. The average boy could do that, or act as newspaper carrier as in the Eckler case (supra). It would clearly be part time work, arranged so as not to conflict with school hours.

From the foregoing, it is apparent that the definition of “ part time worker ” is not easy to formulate. We cannot say that regular attendance during the daytime as a student in an institution of learning makes every claimant ipso facto a “ part time worker.” Having in mind that the statute since the amendment of 1940 no longer excepts minors as a class, such an interpretation would exclude from unemployment benefits any person employed, no matter how long his hours of work, if he were enrolled regularly for even one course in the daytime at a school or college. Such drastic interpretation is not required. The better test to apply, we think, is to examine the intent of the worker as disclosed by all the circumstances of the case; so as to determine whether the work in question is engaged in as a permanent method of earning a livelihood or is engaged in as a temporary job taken on and performed along with normal school work and subordinate thereto. Applying that test upon the undisputed facts presented here, it is clear that the claimant is engaged in her profession and that her schooling has been arranged with the apparent consent of State and local authorities so that it is subordinate thereto.

The order of the Appellate Division and the decision of the Unemployment Insurance Appeal Board should be reversed, with costs in all courts, and the matter remitted to the Unemployment Insurance Appeal Board for action not inconsistent with this opinion.

Loughban,. Rippey, Lewis, Desmond and Thacheb, JJ., concur; Lehman, Ch. J., dissents.

Ordered accordingly.


text:
    In the Matter of Sophie Curtin, Appellant and Respondent, against John J. Dorman, Former Fire Commissioner of the City of New York and Trustee of the Fire Department Pension Fund of the City of New York, et al., Respondents and Appellants.
    Argued October 16, 1944;
    decided November 30, 1944.

      Edward M. Edenbaum for petitioner-appellant and respondent.
    I. So much of the order of the Appellate Division as affirms the holding of the Special Term that the termination of petitioner’s pension was wrongful is correct, both in law and in fact,-and should not be disturbed. In construing section 791 of the Greater New York Charter, the special protection accorded to pensioners by constitutional and statutory provisions requires doubts to be resolved in petitioner’s favor. (N. Y. Const, art. V, § 7; Roddy v. Valentine, 268 N. Y. 228.) IL The facts are adequate to support the finding of both courts below that the petitioner had done nothing to forfeit her pension. This court accordingly lacks power to disturb on this ground the order appealed from. (Bamman v. Erickson, 288 N. Y. 133; Matter of Sheridan v. McElligott, 278 N. Y. 59.) III. The ten-year Statute of Limitations (Civ. Prac. Act, § 53) is applicable. ‘Since it had not run, and since explanations of petitioner’s delay were given, the order of Special Term allowing recovery of ten years ’ pension payments was correct and should be reinstated. (Thoma v. City of New York, 263 N. Y. 402; Gilbert v. Ackerman, 159 N. Y. 118; Matter of Malossi v. McElligott, 166 Misc. 513; Matter of Eichler v. McElligott, 169 Misc. 848 ; Hanover Fire Ins. Co. v. Morse D. D. & R. Co., 270 N. Y. 86; Hearn 45 St. Corp. v. Jano, 283 N. Y. 139; Matter of Pierne v. Valentine, 291 N. Y. 333; Matter of Ramsay v. Lantry, 123 App. Div. 71.) ,

      Ignatius M. Wilkinson, Corporation Counsel (Morris Shapiro and W. Bernard Richland of counsel), for defendants-respondents and appellants.
    I. The statute vested discretion in the Fire Commissioner as sole trustee of the Belief Fund to grant and terminate the allowance to petitioner. In the absence of a showing of fraud or bad faith, neither the Board of Trustees of the Pension Fund nor the court can review the exercise of that discretion. No such showing having been made here, the petition should have been dismissed. (People ex rel. Bliel v. Martin et al., 131 N. Y. 196; Matter of Sheridan v. McElligott, 278 N. Y. 59; Matter of Friel, 101 App. Div. 155, 181 N. Y. 558; Matter of Heffernan v. McGoldrick, 259 App. Div. 671.) II. Even if petitioner had the right to review the determination of the Fire Commissioner in 1933, that right has now been lost by her loches and through the operation of the Statutes of Limitation. (Schmitt v. Merchants Despatch Trans. Co., 270 N. Y. 287; Matter of Williams v. Pyrke, 233 App. Div. 345; Matter of Mullarkey v. O’Ryan, 91 N. Y. L. J. 1523, 242 App. Div. 615, 265 N. Y. 551; Matter of Villovic v. Valentine, 250 App. Div. 701, 274 N. Y. 548.)
   Desmond, J.

In 1915 petitioner, as the widow of a fireman

who died in the performance of duty, was awarded an annual pension by the then Fire Commissioner of Yew York City. Such a pension was (unlike those now granted, see Administrative Code of the City of Yew York, § B 19-6.0) a gratuity, the whole cost of which was borne by the City. In March of 1933 defendant Dorman, then Fire Commissioner and trustee of the Fire Department Pension Fund, obtained information, later corroborated by police officers of another city that petitioner had been guilty of misconduct by way of living with a man not her husband, in Los Angeles, California. Dorman thereupon suspended payment of the monthly pension installments and no such installments have been paid to petitioner since March 1,1933. Section 791 of the Greater Yew York Charter, as it stood in 1933, provided that such a widow’s pension should cease “ if she shall have been guilty of conduct which, in the opinion of said trustee, renders further payment inexpedient.”

In June, 1933, while petitioner was living in Los Angeles, an attorney representing her interviewed the Fire Commissioner in Yew York City and was informed of the nature of the accusations against petitioner and that the pension payments had been suspended because of those accusations. Petitioner herself returned to New York City in December, 1933. Meanwhile, in November of that year, the Fire Commissioner had made a formal order revoking* her allowance. The Commissioner never held any hearing nor did he have before him any proof except the communications from the police officers above referred to. Petitioner swears that she tried, over a period of several years but always without success, to see and talk to the Commissioner about the matter. The chief clerk of the Fire Department Division of Pensions swears that petitioner visited him in December, 1933, and upon inquiry was informed by him of the charges and the “ evidence ” against her. However that may be, petitioner brought no action or proceeding until the present litigation was commenced by her in August, 1943, more than ten years after she had received her last pension check, and after her attorney had been informed of the reasons for the suspension of payments to her.

In her petition- she flatly denies all the charges against her.

The lower courts granted petitioner a peremptory order in the nature of mandamus which vacated the revocation and commanded the Commissioner and other defendants to reinstate the pension. Special Term directed that petitioner be paid her full pension from the first day of April, 1933. The Appellate Division modified the order below so as to' provide for pension payments for the six years preceding the institution of the proceeding.

We are of-the opinion that section 791, above quoted, of the former Greater New York Charter authorized or required the Commissioner to stop the pension payments, whenever there was a showing to him of misconduct by a petitioner so grave as, in his judgment, to call for such action. Whether or not such a revocation should be ordered was a matter for the Commissioner’s discretion and such a discretion when exercised, is not subject to court review. (Matter of Sheridan v. McElligott, 278 N. Y. 59; People ex rel. Bliel v. Martin et al., 131 N. Y. 196.) It may be — and we do not now decide this question — that petitioner had rights which, although not strictly “ vested ”, were such that she was entitled to an opportunity to appear before the Commissioner and state her side of the case. It may well be that she was in fact denied such an opportunity. But to get any relief in the courts she had to bring her proceeding in due season. {The People ex rel. Millard v. Chapin, 104 N. Y. 96, 102; People ex rel. Staples v. Sohmer, 206 N. Y. 39, 45.) By her own testimony petitioner, after exhausting her efforts to see the Fire Commissioner, waited several years before bringing suit. Section 1286 of the Civil Practice Act prescribing a four-month period of limitations for mandamus proceedings, did not go into effect until 1937 but the courts had for years prior to that, in the absence of a specific statutory limitation, applied to mandamus proceedings, by analogy to certiorari proceedings, that same four-months limitation. (See 3d Annual Report of the Judicial Council [163], [183], “ Proposed Simplification of the Remedies of Certiorari, Mandamus and Prohibition ”, pp. 35 and 55; People ex rel. Miller v. Justices, etc., 78 Hun 334; Matter of McDonald, 34 App. Div. 512, 514.) The enactment of section 1286 merely put into statutory form, as an expression of legislative policy, what had been the undoubted policy of the courts. In view of that settled policy and of the inordinate, unexcused delay of petitioner and obvious prejudice to the City, we must conclude that petitioner has been, as matter of law, guilty of loches.

The orders should be reversed and the petition dismissed, without costs.

Lehman, Ch. J., Loughran, Ripfey, Lewis, Conway and Thaoher, JJ., concur.

Orders reversed, etc.


author: Loughran, J.

text:
    J. Freeman Dixon et al., Appellants and Respondents, v. New York Trap Rock Corporation, Respondent and Appellant.
    Argued October 12, 1944;
    decided November 30, 1944.

      Elijah T. Bussell and Harold H. Jacobs for plaintiffs-appellants and respondents.
    I. The entire question of liability turns on the sole basis of reasonable user. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Kean v. New York Trap Rock Corp., 238 App. Div. 795; Bohan v. P. J. G. L. Co., 122 N. Y. 18;
      Khoury v. County of Saratoga, 243 App. Div. 195; Whalen v. Union Bag & Paper Co., 208 N. Y. 5; Hogle v. Franklin Manufacturing Co., 199 N. Y. 396.) II. Causal relation and resultant damage were clearly established. III. The Appellate Division was in error in reversing as to Katherine S. Dixon. (Comstock v. Wilson, 257 N. Y. 231; Polykranas v. Krausz, 73 App. Div 583; Beck v. Libraro, 220 App. Div. 547; Williams v. Underhill, 63 App. Div. 223; Preiser v. Wielandt, 48 App. Div. 569; Carroll v. New York Pie Baking Co., 215 App. Div. 240; Mundy v. Levy Brothers Realty Co., 184 App. Div. 467.)

      Frederick Evan Crane, Harold Williams and M. Clenn Folger for defendant-respondent and appellant.
    I. Defendant is not liable unless it has been negligent or unless it has been guilty of unreasonable conduct, and there is no evidence to sustain a finding of negligence or of unreasonable conduct. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Holland House Co. v. Baird, 169 N. Y. 136; Barrett v. Federal Crushed Stone Corporation, 147 Misc. 808, 245 App. Div. 800; Page v. Dempsey, 184 N. Y. 245; Hill v. Schneider, 13 App. Div. 299.) II. There is no finding of fact and nothing to support the conclusion of law that defendant’s operation constituted a nuisance. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Barrett v. Federal Crushed Stone Corp., 147 Misc. 808, 245 App. Div. 800.) III. There is no evidence in the record to support a finding that vibrations from the defendant’s blasting damaged the plaintiffs’ property. (White v. Lehigh Valley R. R. Co., 220 N. Y. 131; Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Turack v. State of New York, 173 Misc. 178; Matter of Harriot, 145 N. Y. 540; Hudson v. R., W. & O. R. R. Co., 145 N. Y. 408; Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86.) IV. The facts found by the Referee affirmatively show that vibrations from the defendant’s blasting did not and could not have caused any damage to the plaintiffs’ house. (Hunter v. N. Y. O. & W. R. R. Co., 116 N. Y. 615; Keller v. Erie R. R., 183 N. Y. 67; People v. Galbo, 218 N. Y. 283.) V. The Appellate Division correctly reversed the judgment on account of personal injury to plaintiff Katherine S. Dixon. (Mitchell v. Rochester Railway Co., 151 N. Y. 107; Hack v. Dady, 142 App. Div. 510;
      Comstock v. Wilson, 257 N. Y. 231; Cook v. Village of Mohawk, 207 N. Y. 311.)

      John C. Call, William F. Howe and Karl M. Dollak for National Crushed Stone Association, Inc., amicus curia.

    I. In order to recover for consequential injuries sustained as the result of vibration caused by blasting on the premises of the defendant, plaintiff must prove that such injury was caused by negligence on the part of the defendant. This the plaintiffs failed to do. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Holland House Co. v. Baird, 169 N. Y. 136; Page v. Dempsey, 184 N. Y. 245; Hall Sons’ Co. v. Sundstrom & Stratton Co., 138 App. Div. 548, 204 N. Y. 660; Sullivan v. Dunham, 161 N. Y. 290; Benner v. The A. D. Co., 134 N. Y. 156; Coley v. Cohen, 289 N. Y. 365; Kaninsky v. Purcell & Gilfeather, Inc., 158 N. Y. S. 165.) II. Plaintiffs produced no direct evidence that vibration from defendant’s blasting caused damage to their premises. III. To recover a judgment, the burden of proof is on plaintiff to establish by a preponderance of evidence that the injury complained of was caused by the vibration resulting from the blasting. (Riggs v. New York Tunnel Co., 202 N. Y. 129; White v. Lehigh Valley R. R. Co., 220 N. Y. 131; Digelormo v. Weil, 260 N. Y. 192; Scharff v. Jackson, 216 N. Y. 598; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1.) IV. Where physical processes are obscure and concerning them a layman can have no well-founded knowledge, expert testimony must prevail and cannot be contradicted by the testimony of lay witnesses. (Dougherty v. Milliken, 163 N. Y. 527; Mayor v Pentz, 24 Wend. 668; Burton v. Holden & M. Lumber Co, 112 Vt. 17; State Compensation Ins. Fund v. Industrial Acc. Comm., 195 Cal. 174; People ex rel. Benson v. Burdick, 215 App. Div. 163; In Re Maralian, 43 N. Y. S. 2d 461; Harris v. Nashville C. & St. Louis Railroad, 153 Ala. 139; Safeway Stores, Inc., v. Phelps, 145 S. W. 2d 337; National Life & Accident Insurance Company, Inc., v. Martin, 14 N. E. 2d 1018.) V. Defendant’s evidence demonstrated that vibrations from the defendant’s blasting were not the cause of any damage to the plaintiffs’ property. (Hunter v. N. Y. O. & W. R. R. Co., 116 N. Y. 615; Higgins v. Mason, 230 App. Div. 149, 255 N. Y. 104. )
   Loughran, J.

The plaintiffs are husband and wife and, as tenants by the entirety, are the owners of a dwelling-house property in the county of Dutchess. Their complaint alleges that this house was injured and the health of the female plaintiff impaired through vibration of the earth caused by blasts that from time to time were exploded by the defendant at its neighboring rock quarry.

The blasting operations admittedly were of a customary sort. There was evidence, however, that actual injury thereby done to the house of the plaintiffs was substantial and continuous and greatly diminished the value of the property as well as the enjoyment of it. This proof was adopted by findings that stand affirmed. In the judgment of the courts below, the blasting was so excessive in result as to constitute an “ unreasonable ” interference with the land of the plaintiffs. The tort thus signified is nuisance — a wrong in which failure to take proper care is not a necessary element of liability. (See Campbell et al. v. Seaman, 63 N. Y. 568; McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40; Hogle v. Franklin Manufacturing Co., 199 N. Y. 388; McFarlane v. City of Niagara Falls, 247 N. Y. 340, 343; Cf. Penal Law, § 1530.) For the claimed damages to their property, the plaintiffs have a recovery of $7,500.

As appellant here, the defendant says the findings are contradictory of physical law and assert the impossible. Nothing useful would be gained by setting forth our analysis of the detailed expert testimony on which this contention depends, for at the end we would only be able to say there was a question of fact as to the conclusiveness of the scientific instruments and formulas used by the witnesses. We dispose of this branch of the case, then, by merely stating our conclusion that argument on this point was ended by the findings made and affirmed. (See Walters v. Syracuse R. T. Ry. Co., 178 N. Y. 50.)

Stress is laid by the defendant upon our decision in Booth v. R., W. & O. T. R. R. Co. (140 N. Y. 267). We think this emphasis is misplaced. In the Booth case, the blasting was a more or less temporary act which was appropriate for the adaptation of the defendant’s land to a lawful business and that act was for that reason deemed to be on the side of the public welfare. (Of. Bohlen, Studies in the Law of Torts, 414, 415.) Such an activity — so we said — ought not to be a ground of liability in the. absence of negligence in the method of doing it, unless some substance is thereby east upon the person or property of another. (See the cases cited in Derrick v. Kelly, 136 App. Div. 433.) In the present case, the blasting (as we must suppose) was regularly carried on after notice of harm that already had ensued from it. In the present case, moreover, there was no purpose to promote any improvement of the defendant’s land. These distinctions bring to the fore a fundamental principle which in Sullivan v. Dunham (161 N. Y. 290, 300) was restated by Vakk, J., in these words: “ The safety of property generally is superior in right to a particular use of a single piece of property by its owner.” The Booth case declared a precise exception to that proposition. The present case is not within that exception.

A cross appeal by the plaintiffs remains to be considered. The health of the female plaintiff had been good prior to the time when the defendant’s blasting operations first injured her home in 1935. In that connection, the trial Beferee made the following findings: “ That from said year of 1935 down to the commencement of this action her health has been considerably impaired. That she is suffering from a neurotic condition known as an anxiety state * * * and is unable to sleep or rest normally. * * * That she lives in a constant state of dread and apprehension of the blasting conditions and the consequent damage and ruin of her home. That such blasting and her apprehension and dread thereof has caused her present nervous collapse * * * and that she has committed no act or acts contributing to her suffering * * The Appellate Division reversed these findings and made contrary new findings upon which the judgment was modified by striking therefrom an award to the female plaintiff of $2,000 damages. The plaintiffs now challenge that modification.

We think the above findings of the Beferee are in conformity with the weight of the evidence. On'that basis, his award of damages to the female plaintiff should be reinstated; and this because of the principle that discomfort aild inconvenience caused by the disturbance of the property are valid grounds of - recovery in an action for a nuisance. (See Rosenheimer v. Standard Gas Light Co., 36 App. Div. 1, 10; 21 Amer. & Eng. Eneyc. of Law [2d ed.] 728; 142 A. L. R. 1307, 1312; Salmond on Torts, 9th ed. 231.)

The judgment of the Appellate Division should be reversed and that of the Referee affirmed, with costs to plaintiffs.

Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., and Thacher, J., concur in the result.

Judgment accordingly.