text:
    Town of Cortlandt, Appellant, v. Village of Peekskill et al., Respondents.

      Argued November 13, 1939;
    decided November 21, 1939.

      Charles Blank for appellant.

      William A. Davidson, County Attorney, for County of Westchester, amicus curiœ.

      Edward G. Halsey, Jr., Corporation Counsel, for respondents.

      Isadore Vogel for Non-Partisan Citizens Committee of Village of Peekskill, amicus curiæ.

   Rippey, J.

This action was brought to procure a declaratory judgment decreeing that chapter 194 of the Laws of 1938, being the proposed charter for the city of Peekskill, is inoperative and void or, in the alternative, to declare the meaning of and so construe certain provisions of the act as to make the charter workable. The act was passed upon emergency message by the Governor and became a law on March 29, 1938.

Section 204 of the act provides that it shall become effective on January 1, 1940, provided that this act shall be adopted and approved as follows: At the general election of the inhabitants of the territory within the proposed city of Peekskill, as in this act described, which shall be held on the twelfth day of April, nineteen hundred thirty-eight, at which [there shall be submitted to the qualified voters the following proposition: Shall the legislative act of nineteen hundred thirty-eight approved by the governor, entitled An act to incorporate the city of Peekskill ’ be approved? Unless a majority of the votes cast at such election shall be in the affirmative, this act shall thereupon become ineffective. All said inhabitants possessing the qualifications to vote under the present charter of the village of Peekskill shall be entitled to vote at said election.”

At the outset it is asserted that the charter did not go into effect because the question was not submitted to the voters in accordance with law and appellant specifies, as grounds for this challenge, that legal notice of the submission of the question was not given and notice of right to vote on the question was limited to taxable inhabitants only.

There is no provision in the act as to what notice shall be given to those entitled to vote on the submission of the act. The date for submission is fixed, i. e., April 12, 1938. It is agreed that April twelfth was the date duly fixed for the annual election of village officers. Between the date when the act became a law and the date of submission was an intervening period of thirteen days. Counting March 29, 1938, there was fourteen days’ time for notice of submission prior to the day when the event occurred from which reckoning was required to be made (General Construction Law [Cons. Laws, ch. 22], § 20; cf. People v. Burgess, 153 N. Y. 561). In the absence of any provision of the act to the contrary, it must be presumed that the Legislature determined that the period allowed for notice of submission was sufficient.

Section 4 of title II of the charter of the village of Peeks-kill then in force (Laws of 1883, ch. 117), provided that notice of the annual election for village officers must be published for two consecutive weeks immediately preceding said election in two or more of the village newspapers.” This required the full period of fourteen days to elapse since the first publication of the notice. (Olds v. City of Jamestown, 280 N. Y. 281.) The village charter contains no provision specifying what notice, if any, must be given of the submission of a proposition to be voted upon at the village election. Section 52 of the Village Law (Cons. Laws, ch. 64, as amd. L. 1928, ch. 854; L. 1934, ch. 136) supplies that requirement and is effective here as well as is the requirement contained in that section in regard to posting notices, since those provisions of the Village Law are not inconsistent with the special law by which the village of Peekskill was incorporated (Village Law, § 380), and are not inconsistent with the provisions of the act chartering the city. Section 52 requires the notice of submission of the proposition to be “ conspicuously posted in at least six public places in the village ” and further provides that “ a vote upon a proposition shall be void unless due notice of the election has been given.” Due notice of the election, so far as the submission of the proposition in question was concerned, required publication in two or more village newspapers for two consecutive weeks immediately preceding such election as required by section 4 of title II of the charter of the village of Peekskill and posting thereof as required by the provisions of section 52 of the Village Law. These provisions are mandatory on submission of a proposition. If either step was omitted the vote on the submitted proposition is void. (Cf. 8 State Dept. Rep. 516, and cases cited.)

The notice of the annual election was published in the Evening Star, a daily newspaper, on March 25 and April 1, 1938, in the Press Union, a daily newspaper, on March 25, March 31 and April 4, 1938, and in the Highland Democrat, a weekly newspaper, on March 24, March 31 and April 7, 1938. That publication substantially complied with the requirements of the statute "with respect to the notice of the annual election of village officers to be published in newspapers (Salducco v. Etkin, 268 N. Y. 606), since, by express statutory provision, failure to post notices thereof did not render the election invalid (Village Law, § 52). The Legislature did not extend that saving clause to the submission of a proposition but, on the contrary, expressly required notice to be given as required by law.

The notice of submission of the proposition was not a part of the notice of annual election as required by section 52 of the Village Law. A separate notice was printed whereby the budget for the village was detailed and was submitted to the taxable inhabitants of the village and in this notice near the end thereof was printed the proposition with reference to the submission of the charter. That notice reads: “ Notice is hereby given, that the following estimates for the objects and purposes herein set forth will be submitted to a vote of the taxable inhabitants of the Village of Peekskill at the annual election to be held Tuesday, April 12, 1938, pursuant to the Charter of said Village, being the estimated expenses for the ensuing year, to-wit:” Then follows a detailed list of estimates for the different village departments and, serially, thirteen resolutions for the raising of the amounts specified in the budget and for other purposes. Following that long and detailed notice and at the end thereof is set out Proposition No. 1,” being the question specified in section 204 of the City Charter Act. That notice was published as follows: In the Evening Star on March 29, April 5 and April 12, 1938, in the Press Union on March 29, April 4 and April 11, 1938, and in the Highland Democrat on March 31 and April 7, 1938. We think that the publication of that notice so far as publication in the newspapers was concerned possibly might be held to be a substantial compliance with the requirements of the statute (Salducco v. Etkin, supra). However, this notice was not posted as required by the provisions of section 52 of the Village Law and the proposition was not submitted to all of the inhabitants of the village of Peekskill who were entitled to vote thereon under the Village Charter (See L. 1883, ch. 117, tit. II, § 5), as required by section 204 of the proposed city charter. The vote thereupon was, therefore, voidable (Village of Lynbrook v. Cadoo, 252 N. Y. 308, 312) at the instance of plaintiff for failure to submit the proposition as required by law.

It is urged by respondents that actual notice of the submission of the proposition was received by all of those entitled to vote at the election regardless of whether they were taxable inhabitants or otherwise by virtue of meetings that were held, discussion of the merits of the proposition and general publicity and that the submission of the proposition should not be set aside because the statutory requirements were not complied with. Attention is also called to the fact that 5,722 votes were cast at the general election, of which number 4,356 voted on the charter proposition, that 3,100 votes were cast in favor of the charter proposition and that the proposition would have carried even though every person entitled to vote who presented himself at a voting booth had voted upon the proposition. The opinion in Salducco v. Etkin (155 Misc. Rep. 361) is relied upon. In the Salducco case, however, the notices were posted as required by law and the question of the limitation of the vote to that of the taxable inhabitants was not involved. The mere fact that no harm was done, if such be a fact, and that no voters were disfranchised by virtue of the irregular notice and the failure to post any notice whatsoever is not material. When the statutes prescribe methods by which propositions changing the form and structure of government shall be submitted, it cannot be left to the discretion of the court to say that substantially no notice whatever is required or that the specific provisions of the statutes may be overridden. There must be some uniformity in matters of this kind. The question is one of legal notice and not one of actual notice (Matter of Town of La Fayette, 105 App. Div. 25, 31; Matter of Town of Livingston, 189 N. Y. 549; Matter of Peters v. Sisson, 224 N. Y. 554).

The boundaries of the city of Peekskill as outlined in said act are asserted to be generally the same as those of the village of Peekskill and the same is a governmental unit within the town of Cortlandt in Westchester county. The charter of the village of Peekskill and acts amendatory thereof were amended, consolidated and revised by chapter 117 of the Laws of 1883. There was no supervisor for the village, as such. Section 5 of the act creating the city provides that the town of Cortlandt shall on and after January 1, 1940, consist of all of that portion of the town not included within the boundaries of the city of Peekskill and that the territory embraced within the latter unit shall constitute no part of the town and section 5-a excludes residents of the city from holding town offices. Section 9 provides for elective officers of the new city consisting of a mayor, six councilmen, two supervisors, a comptroller and such other officers as may be provided by law. Various governmental departments are created and positions named to be filled by appointment to enable the city to function. All of the elective officers were to be chosen at the general election to be held in November, 1939, or November, 1941, and were to take office on January 1, 1940, or January 1, 1942, it being asserted that provisions of the act creating the elective personnel of the new government and the times at which its elective officers should be selected and commence to function are inconsistent and indefinite. The act creating the city provides, as above stated, for the election of two supervisors for the city, thereby creating two additional supervisors for the county of Westchester, and it is urged both by plaintiff and by the county that the new charter is violative of section 26 of article III of the Constitution as it existed in 1938, at least, in so far as it provides for the additional supervisors. It is additionally urged that the provisions of the new charter are so indefinite, inconsistent and uncertain that it is impossible to determine the meaning of its provisions or to put them into practical operation, and we are urged by all parties to disclose their meaning and to so construe them as will give them practical effect. In view of our decision that the charter was not submitted to the voters as required by law, we express no opinion upon any of the foregoing questions. Evidently, the Legislature believed that there was merit in those contentions, for it passed an act at the 1939 session (Laws of 1939, ch. 825), which received the approval of the Governor on June 9, 1939, for the purpose, it is asserted, of correcting the alleged defects in the charter. We are told that the latter act was submitted to the voters on July 21, 1939, and was defeated. The government of the village of Peekskill continues to function, as provided by the village charter, in all respects as it functioned at the time of the passage of the act creating the city of Peekskill unless and until the latter or a similar act should be again authorized for submission and submitted and become legally effective.

This action was commenced on October 5, 1939. This was about one year and six months after the act was submitted to the voters and on the eve of the 1939 general election. On the record and briefs submitted, it cannot be held that plaintiff was guilty of loches in commencing the action. The authorities of the town of Cortlandt and of the village of Peekskill were attempting, during a large portion of the time intervening between the submission, on April 12, 1938, of the act creating the city and the date of the commencement of the action, to correct the alleged defects in the charter through legislation without resort to the courts.

The judgments should be reversed and the matter remitted to Special Term to enter judgment declaring that chapter 194 of the Laws of 1938 was not legally submitted to the qualified voters at the election held on April 12, 1938, and that said act, therefore, failed to become effective, with costs in all courts.

Crane, Ch. J., Lehman, Hubbs, Lottghran and Finch, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    B. C. Schram, as Receiver of First National Bank-Detroit, Appellant, v. Bessie B. Cotton, Respondent.

      Argued October 17, 1939;
    decided November 21, 1939.

      Robert S. Marx, Robert L. Loeb and Oscar M. Bate for appellant.

      Paul G. Reilly and Allen W. Maddren for respondent.
   Lehman, J.

Acting under authority conferred upon him by act of Congress, the Comptroller of the Currency of the United States, on May 16, 1933, found and declared ” that it appeared to his satisfaction that, in order to pay the contracts, debts and engagements of First National Bank-Detroit, it was necessary to enforce the individual liability of the stockholders of such bank as prescribed in the Revised Statutes of the United States (§§ 5151, 5234). Accordingly, he levied an assessment and requisition upon the stockholders of First National Bank-Detroit for twenty-five million dollars to be paid by them on or before the 23d day of June, 1933. The time of payment was subsequently extended to July 31st. By such levy and assessment the liability of each stockholder for the payment of the amount of the par value of the shares of stock owned by him became fixed.

The defendant, a resident of the State of New York, is the record owner of five hundred shares of the capital stock of Detroit Bankers Company, a Michigan corporation. Its corporate purpose as set forth in its articles of association was to acquire, own, hold, vote and exercise all rights of ownership of, and to sell, and dispose of shares of the capital stock of banks and trust companies * * It was formed by stockholders of five banking corporations in Michigan. They exchanged their stock in these banking corporations for stock in the holding corporation. That corporation became the holder of practically all of the stock of the five banking corporations and its directors completely controlled these banking corporations. It had no assets other than stock in banking corporations. ' Claiming that each shareholder of the Detroit Bankers Company, the holding corporation, is liable under the assessment levied by the Comptroller upon the stockholders of the First National Bank-Detroit, as if such shareholders of the Detroit Bankers Company were the record owners of the number of shares of stock of the bank held by Detroit Bankers Company in the percentage and fraction that his holdings of said Detroit Bankers Company stock bore to the total number of Detroit Bankers Company shares outstanding,” the receiver of the bank brought this action against the defendant to enforce such liability.

The material allegations of the complaint are not controverted by the defendant. The individual liability for the debts of First National Bank-Detroit imposed by the Revised Statutes became fixed when the assessment was levied upon the stockholders of the bank, and a cause of action in favor of the receiver of the bank against each of the shareholders of the bank accrued not later than the date when the assessment was payable. The defendant does not dispute that, nor does the defendant dispute that each holder of shares of capital stock in the holding company is liable for his proportionate part of any statutory liability which might be imposed upon the holding corporation as if such holder of shares of the holding corporation had been the record owner of his proportionate part of the bank stock held by the holding company. The sole defense urged is that the cause of action alleged in the complaint is barred by the Statute of Limitations of the State of New York.

The action was begun more than three years and less than six years after the cause of action accrued. An action against * * * a stockholder of a moneyed corporation, or banking association, * * * to enforce a liability created by the common law or by statute ” must be commenced within three years after the cause of action accrued. (Civ. Prac. Act, § 49.) The statutory period of limitation of this State is applicable in an action brought here to enforce the individual liability of the stockholders of a national bank for the debts of the bank in accordance with the acts of Congress which create and regulate such liability, since no other period of limitation is prescribed by these acts. (Pufahl v. Estate of Parks, 299 U. S. 217.) The Appellate Division has held that the three-year period of limitation-for an action to enforce the liability created by statute applies here and, accordingly, has granted summary judgment in favor of the defendant.

In construing a similar complaint in an action brought, like the present action, in this State against a shareholder of the same holding corporation to compel payment by such shareholder of his proportionate part of the same assessment levied. on the stockholders of First National Bank-Detroit, we said that “It is difficult to place in any recognized classification the relation of the dominant corporation and its stockholders towards the banks which it controls. Perhaps the stockholders of the dominant corporation may be treated as stockholders of each subsidiary bank, and, as such, subject to liability created by the statute for their pro rata share of the debts of each bank; but there are additional allegations in the complaint that each stockholder of the dominant corporation has, by contract, expressly assumed such liability.” (Schram v. Keane, 279 N. Y. 227, 231.)

The plaintiff-appellant urges that because the complaint, which is now before us, contains similar allegations that each stockholder of the dominant corporation has, by contract, expressly assumed the obligation to pay his pro rata share of the statutory liability imposed upon stockholders of a bank for the debts of the bank, the cause of action set forth in the complaint is “ upon a contract obligation * * * express or implied ” to which the six-year period of limitation contained in section 48 of the Civil Practice Act applies. The same question was raised but was not decided in. the earlier case for there we found that the action was timely even if the three-year period applies. Now we must decide whether the three-year or the six-year period applies to a cause of action to enforce the statutory liability which the stockholders of Detroit Bankers Company expressly assumed.

For some purposes and in some respects the individual liability of stockholders of a bank for the debts of the bank. though created by statute, is a “ contract obligation.” (Backus v. Connelly, 268 Mich. 495; Coombes v. Getz, 285 U. S. 434.) That is true because a person who voluntarily acquires stock in a corporation thereby impliedly agrees to assume every obligation or burden which the law attaches to the ownership of the stock — though he may not know that the law attaches a particular obligation to ownership of the stock, and might have been unwilling to assume it if he had known. None the less the three-year period of limitation imposed by section 49 of the Civil Practice Act upon actions against stockholders of a moneyed corporation to enforce a liability created by * * * statute,” applies, it is clear, to an action upon that form of contract obligation.” The Federal courts in an unbroken line of decisions have held that the stockholders of Detroit Bankers Company are stockholders ” of the First National Bank-Detroit within the meaning of that term as used in the statutes imposing on the “ stockholders ” of a national bank an individual liability for the debts of the bank. (Barbour v. Thomas, 86 Fed. Rep. [2d] 510; certiorari denied, 300 U. S. 670; Strasburger v. Schram, 93 Fed. Rep. [2d] 246; Schram v. Smith, 97 Fed. Rep. [2d] 662.) The stockholders of the dominant corporation became subject to that liability when they acquired their stock, because the acts of Congress attached such liability to ownership of the stock regardless of whether or not the stockholders were in fact willing or intended to assume that liability, and in an action to enforce that liability the three-year period of limitation concededly applies.

It is not, however, disputed that the stockholders of Detroit Bankers Company were not only willing to assume the individual liability for the debts of the banks and trust companies controlled by that company which the statutes imposed upon the stockholders of those banks and trust companies but that, in express terms, they agreed to accept such liability.

That is shown by the allegations of the complaint that:

“ In order to satisfy state and federal authorities, and in order to obtain and hold public confidence, and to assure the depositors and creditors of said banks and trust companies that they were the real, true, actual and beneficial shareholders of said banks and trust companies, and that the liability imposed by the laws of the United States and of the State of Michigan upon the shareholders of national and state banks respectively, for the security and protection of the depositors and creditors thereof, still rested upon the real, true, actual and beneficial owners of said bank and trust company shares, notwithstanding the fact that said shareholders thereof went through the form of exchanging said shares for shares in said Detroit Bankers Company, the stockholders of the Detroit Bankers Company caused to be inserted in the Articles of Association of Detroit Bankers Company, as Article IX-A thereof, the following section, to wit:
“ 1 The holder of each share of common stock of this corporation shall be individually and severally liable for such stockholder's ratable and proportionate part (determined on the basis of their respective stockholdings of the total issue and outstanding stock of this corporation) for any statutory liability imposed upon this corporation by reason of its ownership of shares of the capital stock of any bank or trust company, and the stockholders of this company, by the acceptance of their certificates of stock of this company, severally agree that such liability may be enforced in the same manner and to the same extent as statutory liability may now or hereafter be enforceable against stockholders of banks or trust companies under the laws under which said banks or trust companies are organized to operate. A list of the stockholders of this company shall be filed with the Banking Commissioner and the Comptroller of the Currency, whenever requested by either of those ofifcers.’ ”

It has been said that under article IX-A a secondary liability arises, based upon the express agreement of the stockholders of Detroit Bankers Company to assume the primary liability imposed by the statutes upon the stockholders of First National Bank-Detroit (Backus v. Connelly, supra), and that an action to enforce that secondary liability is subject to the period of limitations applicable to actions upon a contract obligation ” rather than the period of limitations applicable to statutory causes of action. (Cf. Schram v. Smith, supra.) A single act or default causing a single injury may constitute a breach of different duties and give rise to causes of action based upon different grounds of liability and subject to different statutory periods of limitation. (Schmidt v. Merchants Despatch Transportation Co., 270 N. Y. 287.) Here the complaint alleges, however, only one breach of duty and one ground of liability, i. e., the failure of the. defendant to pay the assessment pursuant to the statutes which impose an individual liability upon the stockholders of a national bank. ;

A voluntary promise to assume a duty or liability, which Ghe law imposes even where there is no promise, creates no new duty or liability. (Cf. Barbour v. Thomas, supra, at pp. 517, 518.) Nor would the receiver be in a better position if the liability of stockholders of the dominant corporation rested solely upon their agreement to assume the liability of stockholders of the subsidiary moneyed corporation, for that agreement was only to assume the statutory liability “ enforced in the same maimer and to the same extent as statutory liability may now or hereafter be enforceable against stockholders of banks or trust companies,” etc. Clearly, as the Appellate Division has held, under a fair construction of that agreement, the liability assumed is the statutory liability to be enforced within the period of limitation applicable to a statutory liability. To hold that the action to enforce the statutory liability imposed upon stockholders of the bank, which has been expressly assumed by the stockholders of the dominant corporation, is governed by a different Statute of Limitations from that which governs an action to enforce the statutory liability impliedly assumed by the stockholders of the bank when they acquire their stock, would exalt form over substance. The problem concerns less the construction of the contract of the defendant than the construction of the New York statute, and in the solution of that problem the decisions of the courts of Michigan and of the Federal court furnish little help.

The judgment should be affirmed, with costs.

Crane, Ch. J., Hubbs, Loughran, Finch and Bippey, JJ., concur; O’Brien, J., taking no part.

Judgment affirmed.


text:
    Lucy Sommer, Appellant, v. Guardian Life Insurance Company of America, Respondent.

      Argued October 10, 1939;
    decided November 21, 1939.

      Clarence G. Bachrach and Samuel S. Bisgyer for appellant.

      Victor E. Whitlock and Joseph Fischer for respondent.
   Lehman, J.

The defendant in 1930 issued a policy insuring the life of Morris Sommer in the sum of $7,000. The plaintiff was the wife of the insured and was named in the policy as the beneficiary. Failure to pay the semiannual premium due on March 11, 1935, caused the policy to lapse; but it was reinstated upon the written application of the insured in which the insured stated: For the purpose of inducing the company to reinstate said policy, I hereby declare that I am now in sound health and that within the past two years * * * I have had no disease, injury, or impairment of health; that I have not consulted nor been treated by any physician, surgeon, or practitioner.” The insured died on November 28, 1935. The defendant company refused to pay the policy on the ground that the representations in the application were false.

A judgment in favor of the plaintiff was reversed by the Appellate Division and the complaint dismissed on the ground that as matter of law the representations contained in the application are false and furnish ground for avoidance by the company of the policy of insurance. The defendant at the trial had the burden of proof upon its affirmative defense of misrepresentation by the assured. All questions of fact were decided at the trial by the trial judge in favor of the plaintiff. The problem presented upon this appeal is whether the proof of misrepresentation, produced at the trial, was so conclusive that the trial justice was bound to direct a verdict in favor of the defendant..

We assume, for the purposes of this appeal, that the assured died of “ coronary thrombosis ” or “an acute coronary occlusion.” We assume further, though only arguendo, that the “ coronary thrombosis ” was accompanied or induced by a “ fibrosis of myocardium and that the evidence establishes without dispute that the heart and arteries of the insured were in a diseased condition long before the condition caused death; that, at the time the assured applied for a reinstatement of the policy, a careful examination of the assured by competent physicians would have disclosed that the health of the assured was impaired and that his impaired physical condition would be described by laymen as “ heart disease.” The record does not disclose that competent physicians did, in fact, make such an examination or discover the condition, or that the insured was conscious of any impairment of health or suffered any pain or inconvenience from it. On the contrary, the evidence shows that until about a week before his death the insured did not complain of any aches or pains; went to his place of business every morning and worked there till evening. The defendant company now contends that it appears, conclusively, that the representations of good health and freedom from disease were false, and that, because of. such falsity, the company may avoid its policy even though the insured may have made these representations in good faith and in the honest and justified belief that they were true.

There can be no doubt that as matter of law the representations made by the insured were material, for they induced the company to renew the lapsed policy. There can also be no doubt that a false representation, if material, constituted a defense although made innocently and without any feature of fraud.” (Eastern District P. D. Works, Inc., v. Travelers Ins. Co., 234 N. Y. 441, 450.) In form the representations are statements of fact made without qualification or reservation; but they are statements of fact upon a subject concerning which the applicant could not have absolute knowledge and which, indeed, is not susceptible of completely objective appraisal or definition. The defendant company undoubtedly knew that the applicant could state only his own opinion that he had no disease and that be was conscious of no malady or condition which impaired his health. If his representations mean only that and are understood to give no assurance beyond that, the proof of falsity is far from conclusive. If, in spite of their nature, these representations are strictly construed as absolute and unqualified representations that the applicant is free even from a latent and unknown disease which causes him no pain or inconvenience and does not interfere with his usual activities, then the representations are false.

Except where the Legislature has, by statute, regulated the form and content of policies of insurance, it is doubtless competent for a life insurance company to exact from an applicant for insurance a warranty that the applicant is free from disease or from impairment of health, however slight, regardless of whether such disease or impairment of health is known or unknown, latent or apparent. It may, when not restricted by the Legislature, condition the valid inception of a contract of insurance upon the existence at the time of perfect and complete health, free even from temporary slight impairment; but such warranty or condition should be phrased in clear and unequivocal terms. (Moulor v. American Life Ins. Co., 111 U. S. 335.) Here we are dealing with a representation and not a warranty or a condition. The applicant does not guarantee the literal truth of the statement, nor do the parties condition their contract upon the existence of good health. The representation is not part of the contract; it is a “ statement inducing the formation of the contract as distinguished from an affirmation of fact or a promise incorporated in and material to the contract.” (3 Williston on The Law of Contracts, [Rev. ed.] § 673; Vance on The Law of Insurance, pp. 389,390; 4 Couch, Cyclopedia of Insurance Law, §§ 824, 885.) Such statements must be construed in the light of their purpose to furnish to the company information which will enable it to decide whether it shall make a contract of insurance in which the information furnished will not be incorporated as an affirmation of fact.

The courts, both State and Federal, have generally construed statements that an applicant was in good health or free from disease as a representation only that the applicant in good faith believed and was justified in believing that his health was not impaired by any condition which would ordinarily be regarded as a “ disease.” The representation cannot reasonably be 'understood as intended to do more than convey to the company such information as the applicant might be expected to have and to give to the company assurance that the applicant has had no symptom of disease which would, ordinarily, act as a warning or notice, even to a layman, that his health might be impaired in substantial degree, and assurance that the applicant, in good faith, believes that he is in fact a well person. Even statements . of good health or freedom from disease which are made in the form of a warranty are usually construed merely as representations and statements of opinion, since it, is plain that the insured or applicant cannot speak with positive knowledge. (Cf. Patten v. United Life & Accident Ins. Assn., 70 Hun, 200; affd. on opinion below, 141 N. Y. 589; Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274; Horn v. Amicable Mut. Life Ins. Co., 64 Barb. 81; Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Ames v. Manhattan Life Ins. Co., 40 App. Div. 465; Moulor v. American Life Ins. Co., supra; Phœnix Life Ins. Co. v. Raddin, 120 U. S. 183; Fidelity Mut. Life Assn. v. Jeffords, 107 Fed. Rep. 402; Evans v. Penn Mut. Life Ins, Co., 322 Penn. St. 547.)

The only question which remains is whether the record shows conclusively that the representation was false, that the insured had not “ consulted or been treated by any physician, surgeon, or practitioner.” The records of New York Orthopedic Hospital show that on August 1, 1934, a man who gave the name of Morris Sommer visited the clinic or dispensary and there consulted an interne and received a prescription or treatment for some ailment. The nature of the ailment is stated in the hospital records offered in evidence by the defendant, but that part of the record was excluded upon the plaintiff’s objection. If the insured, Morris Sommer, was the same person who gave the name of Morris Sommer and was treated at the dispensary in August, 1934, then the representation made by the applicant was false and may not be disregarded as immaterial. (Jenkins v. John Hancock Mut. Life Ins. Co., 257 N. Y. 289; Anderson v. Ætna Life Ins. Co., 265 N. Y. 376; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63.)

We assume for the purpose of this appeal that the records of the hospital were admissible in evidence to show that the insured was treated there and that identity of name establishes prima fade identity of person, especially since the records show also identity in the name of the wife and the country of birth. (Hatcher v. Rocheleau, 18 N. Y. 86; People v. Snyder, 41 N. Y. 397; People ex rel. Haines v. Smith, 45 N. Y. 772; 5 Wigmore on Evidence, § 2529.)

Any presumption of identity of person arising from identity of -na.me and these other circumstances, is not, however, conclusive. There may be other persons of the same name or the person visiting the dispensary may have chosen to cloak his identity by assuming the name of the insured. The address given by that person is not the address of the insured and other discrepancies cast doubt upon the presumed identity. In such circumstances it cannot be said as matter of law that the insured was the person who visited the dispensary on August 1, 1934, and the question of fact was resolved against the defendant.

It follows that the judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division. • Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.


text:
    Mario Zambardi, Jr., an Infant, by Mario Zambardi, Sr., His Guardian ad Litem, et al., Appellants, v. South Brooklyn Railway Company, Respondent.

      Argued September 28, 1939;
    decided November 21, 1939.

      Abraham N. Levy, K. Carl Hartenstein and Samuel S. Leibowitz for appellants.

      Ralph E. Hemstreet and W. Harry Sefton for respondent.
   Lehman, J.

The infant plaintiff, a seven-year-old boy, was struck by a trolley car operated by the defendant railway company upon a private right of way, which it owns. He sustained very serious injuries. In this action to recover the consequent damages, judgment in his favor was entered, upon the verdict of a jury, in the sum of $20,000, and in favor of his father in the sum of $3,000. Upon appeal to the Appellate Division, the judgment was reversed on the law and the complaint dismissed.

At the point where the accident occurred the railroad track was not laid across or along streets or highways and it is said that any person walking across the tracks violated the provisions of section 83 of the Bailroad Law (Cons. Laws, ch. 49) and section 1990 of the Penal Law, and became a trespasser, who may recover damages caused by the negligence of employees of the railroad company only where such negligence is willful or wanton. Here the plaintiffs’ evidence, which upon this appeal we must accept as true, establishes that the infant plaintiff was crossing the track from west to east on a pathway that had been beaten down by others who had crossed there in the past and that the motorman failed to exercise the vigilance which a reasonably prudent person would have exercised at a point where persons have long crossed the track without objection from the railroad company. There is no evidence of willful or wanton negligence. The question, then, to be decided in this case is whether the infant plaintiff was, as matter of law, a trespasser on the defendant’s property, to whom the railroad company owed no duty of vigilance.

In Keller v. Erie R. R. Co. (183 N. Y. 67, 71) the defendant was charged with causing the death of the plaintiff’s intestate while he was walking, with some companions, upon and along the defendant’s trades, “ where there was no highway and but an intersection of railroad tracks.” This court affirmed an order of the Appellate Division reversing a judgment in favor of the plaintiff on the ground that as matter of law the plaintiff’s intestate was guilty of negligence in failing to see the approaching train. Except for such contributory negligence on the part of the plaintiff’s intestate, the Appellate Division assumed, or held, that the plaintiff might have recovered, stating in its opinion that the use of the defendant’s tracks at this point by pedestrians had been so general, notorious and long continued that the defendant can fairly be said to have acquiesced in that user. It was, therefore, incumbent upon the defendant to give some warning of the approach of its trains at this junction for the benefit of these licensees.” (98 App. Div. 550, 552.) Though this court, expressly land unanimously, placed its affirmance of the order of the Appellate Division on the ground that the plaintiff’s intestate was guilty of negligence which contributed to his death and which would bar recovery, the opinion of Judge Gray goes further and states: “ Whoever walks upon, or along, the tracks of a railroad, except when necessary to cross the same upon some street, highway, or public place, violates the law and is like a trespasser, and the company’s servants are under no other obligation than to refrain from willfully, or recklessly, injuring him ” (p. 72).

What was there said was, of course, unnecessary to the decision and it received the full concurrence of only three judges. One judge was absent and two judges, though concurring in the decision on the ground first stated in the opinion, expressly dissented from the last ground upon which the judgment is based by the prevailing opinion ” (p. 73). Cullen, Ch. J., concurred with the dissenting judges in the proposition that by long user the public may acquire, despite the terms of the statute, a presumptive right to cross a railroad track at a point that is not a street or highway. The proposition seems to be sustained by the authorities * * *. The command of the statute is explicit and subject to no qualification, that a person other than an employee of a railroad shall not walk upon its tracks except where it is necessary to cross the same. The deceased was not only crossing the tracks of this defendant at a point that was not a highway or street crossing, but he was traveling along the tracks of the New York Central Bail-road Company. * * * In the face of the express command of the statute the public cannot by user acquire the right to use the tracks of one railroad as a highway and, therefore, it cannot acquire the right to cross the tracks of another railroad at its intersection with the first ” (p. 77). Only subject to the limitations set forth in this memorandum of Cullen, Ch. J., did the prevailing opinion obtain the concurrence of a majority of the court.

In spite of the divergent views expressed by the members of this court who sat in the Keller case, the rule of law stated in the prevailing opinion has been generally followed, at least where a person was injured while walking along a railroad track and not while merely walking across it. (Jerzewski v. Erie R. R. Co., 215 App. Div. 748; affd., 242 N. Y. 592, and Gleason v. Central N. E. Ry. Co., 261 N. Y. 333.) In the latter case the court, while recognizing that strong argument might be made for a different rule, said that it felt bound by the authority of the earlier case. When the court has been called upon to define the obligation of the railroad towards a pedestrian merely crossing the railroad tracks along a way used by the public with the knowledge and acquiescence of the railroad company, the court has always been inclined to limit the rule of the Keller case in manner suggested in the concurring memorandum of Cullen, Ch. J.

Thus in the case of Lamphear v. N. Y. C. & H. R. R. R. Co. (194 N. Y. 172, 174) the court, in an opinion again written by Gray, J., held that the rule of the Keller case did not apply in a case where “ for a long series of years the public, with the acquiescence and with the permission and consent of the railroad company, had been accustomed to cross the railroad tracks at a point where this accident happened.” The court, citing the earlier cases of Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 289) and Byrne v. N. Y. C. & H. R. R. R. Co. (104 N. Y. 362), said that in such a situation the railroad company was bound to use reasonable care to protect the persons from injury, whom it so permitted to cross at that point.” In Skzypek v. L. I. R. R. Co. (249 App. Div. 629; affd., 275 N. Y. 508) the court applied the same test of liability in a similar situation.

The distinction which the court has drawn is this: For the protection of the traveling public, as well as the railroad companies, the State has forbidden persons other than employees of the railroad companies to walk “ upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.” (Railroad Law, § 83.) Violation of the statute is made a penal offense (Penal Law, § 1990), and, however frequently repeated or long continued, cannot create a public way, which the public may lawfully use, along its tracks. Even an invitation by the railroad company to the public to violate the Penal Law cannot make such violation lawful or confer upon the wrongdoer the private rights which, under such invitation, an innocent wayfarer would enjoy. On the other hand, the law, under a reasonable construction. does not prohibit the railroad company from inviting or permitting the public to cross the railroad tracks from side to side at a point which is not in strict sense a public street or highway, but which, through such invitation or permission, becomes a way open to public use, where the railroad is bound to exercise reasonable care to protect the safety of the public.

It is true that under a literal construction of the statute a person crossing the tracks of a railroad company, even with the consent of the company, except at a public .street or highway, would be acting unlawfully and the railroad company could not, either by affirmative act or by long continued inaction, create a public passageway where there is no street or highway. Such a construction would, however, ignore the evident intent of the statute and produce a result so unreasonable that it could not have been contemplated by the Legislature. The prohibition, it should be noted, applies only to persons walking along or upon the tracks. The same section provides that “ any person riding, leading or driving any horse or other animal upon any railroad * * * other than at a farm or street or forest crossing, without the consent of the corporation, shall forfeit to the people of the state the sum of ten dollars, and pay all damages sustained thereby to the party aggrieved.” (Bailroad Law, § 83.) Thus the statute recognizes that there may be a farm or forest crossing as well as a street crossing and that even at other places on the track a railroad may consent to a person riding, leading or driving a horse or other animal upon its tracks. By reasonable implication the statute recognizes the right of a railway company, by invitation or long continued acquiescence, to create a crossing over the railway tracks which the public may use as a public way even though technically not a street or highway. The Circuit Court of Appeals (2d Circuit) has so construed the statute and our decisions. (Lehtohner v. N. Y., N. H. & H. R. R. Co., 188 Fed. Rep. 59; Erie R. R. Co. v. Burke, 214 Fed. Rep. 247. Cf. Felton v. Aubrey, 74 Fed. Rep. 350.)

The question remains whether in this case there is proof that at the time of the accident the infant plaintiff was crossing the defendant’s track upon a way or passage which had become a public way by acquiescence or invitation of the defendant railroad company. The defendant company had, in this case, done no affirmative acts which might be considered an invitation to the public as in the case of Lamphear v. N. Y. C. & H. R. R. R. Co. (supra), but it appears from the evidence that, at least until six months before, the accident, the public, with the knowledge of the railroad company and without objection from it, crossed the tracks of the railroad company at or near the point where the accident occurred. A well-marked path had been worn down from a highway on one side of the tracks, across the tracks, to a highway on the other side, and was used by many persons as a short cut. A street, Avenue Y, which otherwise would have connected these highways, stopped on one side a short distance before it reached the tracks. If Avenue Y were cut through it would cross the tracks where the pathway had been worn down. The proof that a public way existed there, with the implied permission of the railroad company, until six months before the accident is, perhaps, not as persuasive as the proof in the case of Skzypek v. Long Island R. R. Co. (supra), but it is, plainly, sufficient to sustain such a finding.

The defendant does not, indeed, seriously dispute that there is evidence that at one time there was a public way across its tracks. It maintains that six months before the accident it gave unequivocal notice to the public that it withdrew any permission it might previously have given to the public to use its premises as the public way. (Cf. Erie R. R. Co. v. Burke, supra.) It is undisputed that the railroad company did put up a fence on one side of the tracks across the place where Avenue Y would, if continued, cross the tracks, and placed upon the fence two signs, reading Private Property. No Trespassing.” The fence effectually stopped drivers of vehicles who mightJiave trespassed upon the property. It did not stop pedestrians who continued to cross the tracks there, wearing down a path at one end of the fence. On the other side of the tracks the defendant placed no fence or signs and the jury has found that the plaintiff crossed from that side. The fence and signs gave unequivocal notice that vehicles might not be driven across the tracks but from the position of the fence and signs on only one side of the track, and from the circumstance that without objection from the railroad company the public continued to walk across the track, a question of fact arose whether the railroad company intended and could reasonably be understood to have intended to give notice that it withdrew the premission previously given to the public to use its premises as a right of way for pedestrians.

For "these reasons the judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.


author: Lehman, J. Rippey, J.

text:
    Lexington & Fortieth Corporation et al., Appellants, v. Cornelius Callaghan et al., Respondents, Impleaded with Another. Lexington & Fortieth Corporation et al., Appellants, v. Lexington Avenue and 40th Street, Inc., Respondent.
    Argued October 11, 1939;
    decided November 21, 1939.

      Samuel Komoroff for appellants.

      William M. Kurtz and Robert Moers for respondent.
   Lehman, J.

The appellant does not, upon this appeal, challenge the findings of fact or the conclusions of law contained in the formal decision after trial of the action. The attack is confined to provisions inserted in the judgment by the justice who tried the case, after, the formal decision was signed by him and entered. The appeal is taken upon a bill of exceptions which in accordance with the provisions of rule 232 of the Rules of Civil Practice contains none of the evidence taken at the trial, since such evidence is not necessary to present the questions of law which are to be raised on the appeal.”

The findings of fact establish that the defendants have leased space occupied as stores on the ground floor of a building owned by the plaintiff Lexington and Fortieth Corporation and occupied as a hotel by the plaintiff Hotel Concord, Inc. The defendants under their lease are permitted to alter the stores leased to them only if the plaintiffs give consent in writing and if the defendants comply, in other respects, with conditions set forth in the lease. In July, 1937, the defendants, without objection from and with the knowledge and consent of the plaintiffs,” altered the interior of the stores and in August, 1937, they altered the outside of the stores without plaintiffs’ knowledge, acquiescence, consent or permission, expressed or implied in any form whatever.” There are findings, too, “ that said outside changes consisting of plaster front, small windows and lack of recessed doors cheapened the character and appearance of the hotel ” and that the plaintiffs have not done or omitted to do any act or thing which would operate, either by way of waiver or estoppel, to bar them from the relief to which they are adjudged to be entitled by the conclusions of law hereinafter set forth.”

The conclusions of law adjudge that “ (4) plaintiffs are entitled to a permanent injunction restraining Cornelius Callaghan, Catherine Callaghan and Lexington Avenue and 40th Street, Inc., from further alterations on the said premises, except as is specifically provided for in the said lease and modification agreement.

“ 5. The motion of the plaintiffs to dismiss the affirmative defenses pleaded by the defendants Cornelius Callaghan, Catherine Callaghan and Lexington Avenue and 40th Street, Inc., is granted.

6. Plaintiffs are entitled to judgment against Cornelius Callaghan, Catherine Callaghan and Lexington Avenue and 40th Street, Inc., in accordance herewith.”

An injunction restraining the defendants from further alterations ” would, it is plain, afford the plaintiffs no redress for the wrong done to them by the defendants through the. changes already made which cheapened the character and appearance of the hotel.” Complete redress for that wrong would require that the plaintiffs be awarded not only a money judgment for any damages which they may have suffered, but also a mandatory injunction directing the defendants to restore the exterior of the building to its original condition. Doubtless the conclusion of law that the plaintiffs are entitled “ to judgment * * * in accordance herewith ” was intended to indicate that the judgment should contain provision for an appropriate mandatory injunction, but it certainly does not formulate the terms of the judgment to be entered.

The judgment as thereafter entered enjoins and restrains the defendant from making further alterations ” as provided in the conclusions of law. It then provides that it is further Ordered, Adjudged and Decreed, that plaintiffs are entitled to a mandatory injunction against the defendants Cornelius Callaghan, Catherine Callaghan and Lexington Avenue and 40th Street, Inc., and the aforesaid defendants are directed to forthwith remove the rear door and present front as reflected in Plaintiffs’ Exhibits 8 and 9, and restore the said premises, both rear and front, to their conditions existing prior to the said alterations herein complained of, as reflected in Plaintiffs’ Exhibit 3, and as indicated in Plaintiffs’ Exhibit 7, prior to the time one of the rear windows was broken through, provided nevertheless that in lieu of such immediate removal and restoration, the said defendants, within ten days after service of a copy of this order and notice of entry, may post in escrow with the attorney for the plaintiffs a good and sufficient bond in the penalty of $2,500 conditioned upon restoration of the premises, at the expiration of its lease to their original state.” The plaintiffs now urge that under the findings and conclusions of law contained in the decision, no judgment could be signed by the trial justice and entered, which annexed a proviso or stay, not contained in the decision, to the mandatory injunction.

A mandatory injunction is an extraordinary remedy to which a suitor has no absolute right but which may be granted or withheld by a court of equity in the exercise of its discretion. Even where the facts which would justify the grant of an extraordinary remedy are established, the court must still decide whether, in the exercise of a sound discretion, it should grant the remedy, and if granted, the terms and conditions which should be annexed to it. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464.) It may be conceded that, in this case, denial of the mandatory injunction or delay in its enforcement until the expiration of the defendants’ lease, constitutes the denial of the only complete remedy which the plaintiffs could invoke for wrong done and the only complete protection from injury caused by continuance of the wrong. Even so, the court must weigh conflicting considerations of benefit to the plaintiffs and harm to the defendants which would follow from the grant of the drastic remedy for which the plaintiffs ask, and all the facts and circumstances which help to show what is just and right between the parties. The record and the findings disclose circumstances which justify the exercise of the court’s discretion in granting the partial relief formulated in the judgment.

We have never held that in an equity action the court may not, after decision is rendered, annex a stay or other proviso to the judgment to which a party is entitled in accordance with the conclusions of law contained in the decision. No such question is now before us, for, in this case, the conclusions of law leave open for subsequent determination the provisions to be inserted in the judgment thereafter entered. There is no formulation of any provision for immediate restoration of the building. Indeed, in the plaintiffs’ proposed conclusions of law they asked the court to decide not that they were entitled to a judgment directing immediate restoration, but “ that plaintiffs are entitled to judgment against the defendants for the sum of SI,107, representing the cost of restoring the demised premises as hereinabove set forth, besides costs and disbursements.”

In each action the judgment should be affirmed, with costs, and the appeal from the order denying the motion to amend the judgment dismissed, without costs.

Rippey, J.

(dissenting). The propriety of a part of a judgment in two actions is here involved. I need not pause to set out in detail the relationships between the plaintiffs and the various parties defendant. The actions were brought by the Lexington and Fortieth Corporation as owner of a fifteen-story brick building located at the southeast comer of Lexington avenue and East Fortieth street in New York city, and The Hotel Concord, Inc., as lessee of at least the ground floor of the building, to compel the defendants immediately to restore that part of the building •leased by the defendant Cornelius Callaghan under a lease dated July 1, 1926, and expiring October 31, 1945, to the condition it was in immediately prior to the time alterations were made. The trial court found that the defendants had put a plaster front and back on the premises which they leased without plaintiffs’ knowledge, acquiescence, consent or permission, expressed or implied in any form whatever,” that the changes cheapened the character and appearance of the hotel and constituted waste and were injurious to plaintiffs. The lease contained a provision that the frontage of the premises could not be altered except upon plaintiffs’ written consent. The court found that this covenant had been violated by defendants. Decision was rendered against defendants Cornelius Callaghan, Catherine Callaghan and Lexington Averiue & 40th Street, Inc., in plaintiffs’ favor.

A judgment designed to carry out the findings and decision was submitted by the plaintiffs to the trial justice, but he added the following provision to the proposed judgment: a * * * provided nevertheless that in hen of such immediate removal and restoration, the said defendants, within ten days after service of a copy of this order and notice of entry, may post in escrow with the attorney for the plaintiffs a good and sufficient bond in the penalty of $2,500 conditioned upon restoration of the premises, at the expiration of its lease to their original state.” The plaintiffs moved to amend and correct the judgment by eliminating the provision inserted by the court, on the ground that it was improper in form and not in conformity with the court’s opinion and decision or based on the pleadings. That' motion was denied and plaintiffs appealed to the Appellate Division from the order as well as from the judgment of the court in so far as it adjudged that the defendants might post a bond conditioned upon the restoration of the premises at the expiration of the lease. The Appellate Division unanimously affirmed.

Although the decision of the court was in form in favor of the plaintiffs, the provision above quoted nullified its effect. Under the terms of the lease, express consent in writing was required before alterations could be made, and since the court found that the alterations had not been consented to, constituted waste and were injurious to plaintiffs, the plaintiffs were entitled to have them removed immediately and were not required to wait until the expiration of their lease in 1945. The plaintiffs were entitled to the judgment in the form submitted without the addition of the part complained of (Agate v. Lowenbein, 57 N. Y. 604).

It was said in Simmons v. Craig (137 N. Y. 550) that if the judgment entered in an action is not in conformity to the decision, the party aggrieved should object thereto and then make a motion to correct it, and if the motion is denied he may appeal, in a proper case, even to this court for its correction. This is what the appellants have done in this case. In Goldstein v. Schick (237 App. Div. 905; affd., 262 N. Y. 697) the Special Term denied the motion to amend the judgment, but the Appellate Division reversed and granted it. This court held that this was proper.

The judgments should be reversed and the matter remitted to Special Term to enter judgments upon the findings in accordance with this memorandum, with costs in all courts.

Crane, Ch. J., Hubbs, Loughran and Finch, JJ., concur with Lehman, J.; Rippey, J., dissents in opinion; O’Brien, J., taking no part.

. Judgment accordingly.


author: Finch, J.

text:
    In the Matter of Green Point Savings Bank, Respondent, against Board of Zoning Appeals of the Town of Hempstead et al., Appellants. Harold Walters et al., Interveners, Appellants.

      Argued September 26, 1939;
    decided November 28, 1939.

      James N. Gehrig for Stephen A. Bedell et al., constituting the Board of Zoning Appeals of the Town of Hempstead, appellants.

      Frederick W. Shaw and W. Wesley Hill for Harold Walters et al., appellants.

      Malvin B. Mariash for respondent.
   Finch, J.

This is a certiorari proceeding by a property owner to require the Board of Zoning Appeals of the town of Hempstead to revoke the building permit and the certificate of occupancy for a gasoline station issued by the building inspector to the interveners. The Appellate Division has granted the relief demanded by petitioner on the ground that the applicable provisions of the Zoning Ordinance of the Town of Hempstead are unconstitutional and contrary to section 262 of the Town Law (Cons. Laws, ch. 62) for lack of uniformity, and that, consequently, permits issued pursuant to such ordinance are void. From that order the Board of Zoning Appeals and the interveners now appeal.

The land of the interveners is located in a district zoned for business purposes. With respect thereto the Zoning Ordinance provides:

“ 701. A building may be erected, altered or used and a lot or premises may be used for any of the following purposes and for no other: * * *
10. Public or Minor Garage; Sales, Service and Repair Shop; Gas Filling Station and Battery and Tire Service Station, when approved by the Town Board. * * *.”

There is also in force in the town of Hempstead another ordinance entitled “ an Ordinance Regulating the Storing of Inflammable Materials,” which was adopted on May 8, 1934.

Petitioner contends that the provision in section 701 (10) of the Zoning Ordinance, when approved by the Town Board,” reserved to the Town Board power to act in an arbitrary or discriminatory manner, and hence is void (N. Y. Const., art. 1, §§ 6, 11); and, further, that any permits issued for the use of land pursuant to such provision of the Zoning Ordinance would also be void and such use would be illegal. On the other hand, the Board of Zoning Appeals and the interveners contend that the permits were issued under the ordinance relating to the storage of inflammable materials and not the Zoning Law; and that in any event the provision, “ when approved by the Town Board,” may be read in conjunction with the requirement for a permit under the ordinance concerning inflammables. More important than either of the foregoing contentions is the contention of appellants that it is not unconstitutional for the Town Board to permit the use of land for a gasoline station subject only to its own consent.

In the case at bar we are dealing only with the right to operate a gasoline service station when approved by the Town Board. To this extent this ordinance is undoubtedly valid. A gasoline service station necessarily involves the storage and use of gasoline and oil, which are so highly inflammable and explosive that they increase the danger of fire no matter how carefully planned are the governmental regulations and supervision. Although nee.ded and lawful buildings, their character is such that regulation as to the place of erection and the use is well within settled principles of the police power.

Here we have the State authorizing the local legislative body, the Town Board, to enact a zoning ordinance. Zoning is a proper subject for legislative regulation by the Town Board. It is a legislative power residing in the State which may be delegated to the Town Board. In enacting the ordinance the Town Board might have prohibited altogether a gasoline service station in a business district. Instead, the ordinance did not prohibit, provided, the use was approved by the local legislative body which enacted the ordinance. There is not presented a case for the canalization of standards to guide an administrative body, for here the power of approving the use was retained by the legislative body. Where the approval is thus lodged in the local legislative body, and where the matter is one which may endanger the safety of persons and property, there need not be formulated standards for the dispensing power, and the ordinance is constitutional. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Fischer v. City of St. Louis, 194 U. S. 361; Storer v. Downey, 215 Mass. 273. Cf. Goldstein v. Conner, 212 Mass. 57.)

The Town Board must act reasonably. So long as its actions come within that scope the courts may not interfere. Obviously, in the exercise of this dispensing power, consents must be refused to those not entitled thereto. A license for a gasoline station may well be denied when next to a public school or in the heart of a business district where a fire might be most disastrous, and at the same time be granted in a suburb or in a less crowded district. The question in each case is whether the establishment of a gasoline station in the particular place or in the particular way would imperil the safety of persons and property. Such dispensing power may properly be delegated to the municipal assembly which enacted the ordinance. (Fischer v. City of St. Louis, 194 U. S. 361.)

Only where a license is refused arbitrarily or discriminatorily may the courts interfere. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330.) In the case at bar there is not even a suggestion that the Town Board has made its decision upon an arbitrary or discriminatory basis. Not until it is shown that the Town Board has exercised its discretion for a reason which it may not legally consider may the decision of the Town Board be set aside.

In Matter of Larkin Co. v. Schwab (242 N. Y. 330) the ordinance in question provided that the consent of the Common Council by a four-fifths vote was necessary in order to store gasoline and similar materials. The same questions as here involved were there discussed at length, and it was there held that the ordinance itself and the action taken thereunder were well within the limits of the authority of the City Council.

In Matter of Small v. Moss (279 N. Y. 290, 295), which primarily concerned delegation of power to an administrative body as distinguished from a local legislative body, we said: By the zoning ordinances the use of real property for particular purposes has been restricted to locations which in the opinion of the body exercising legislative powers are suited, for such use. The local legislative body may in proper case have power to prohibit the use of property when in its opinion such use would be detrimental to the public health, safety or welfare, and to consent to the use when in its opinion such use would not cause injury to the public. In such case it exercises a legislative power, and no general standards need be formulated by it which must govern its determination as to when its consent should be granted or withheld. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330.) We, there, pointed out a distinction between the exercise of the law-making power by a legislative body and the exercise of powers delegated to or conferred upon an administrative officer or board by the legislative body. In the first case discretion may be plenary; in the second case, though the law-making body may confer a measure of discretion, it must at the same time define the limits of that discretion and fix the rules or standards which must govern its exercise.”

Respondent seeks to distinguish the Larkin case on two grounds: First, that in the case at bar it is provided by statute (Town Law, § 262) that the legislation must be uniform, and, second, that the power to create variances in the Zoning Law is expressly given by the Legislature to the Board of Zoning Appeals and not to the Town Board.

Neither of these distinctions is valid. In the first place, as already noted, the ordinance uniformly provides that special uses maybe made of land in a business district subject to the consent of the Town Board. There is no discrimination among the several owners of property within a business district either by the terms of the ordinance enumerating the permissible uses or by the provision requiring the consent of the Town Board. Uniformity, therefore, has been carried out to the extent prescribed by the Legislature.

As to the power given to the Board of Zoning Appeals to grant variances, it may be noted that there is no variance question in the case at bar. This application does not deal with the subject of variances, but falls within the uniform provision of section 701 (10) subject to the approval of the Town Board.

Thus, upon both principle and authority, tiv ordinance in question was not unconstitutional or contrary to section 262 of the Town Law requiring uniformity. It follows that the order of the Appellate Division, declaring unconstitutional section 701 of the Zoning Ordinance of the Town of Hempstead and annulling the determination of the Board of Zoning Appeals and canceling the building permit and certificate of occupancy, should be reversed and the determination of the Board of Zoning Appeals, affirming the issuance of the building permit and certificate of occupancy, affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, Httbbs, Loughran and Rippey, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


author: Rippey, J.

text:
    In the Matter of the Will of Nettie M. Roe, Deceased. Henrietta H. Gordon et al., Appellants; John J. Bennett, Jr., as Attorney-General of the State of New York, et al., Respondents.

      Argued October 10, 1939;
    decided November 28, 1939.

      Harold R. Medina, John D. Hállock and John W. Jordan for appellants.

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer of counsel), respondent.

      Joseph T. Losee for Patchogue Citizens Bank and Trust Company, as trustee, respondent.
   Rippey, J.

Nettie M. Roe died in the village of Patchogue, Suffolk county, on March 24, 1928, leaving a last will and testament which was admitted to probate by the Surrogate of Suffolk county on July 2, 1928, and Sidney N. Gerard and A. Smith Petty were thereupon appointed and qualified and entered upon the discharge of their duties as executors of her estate. On December 15, 1930, an accounting by the executors was had, their accounts settled and they were discharged upon payment of the residuary estate to the Patchogue Citizens Bank and Trust Company, which was named as trustee under the provisions of paragraph twenty-third of the will.

To and including the time of the settlement of the account of the executors no question has been raised by any one interested in the estate or cited on the probate of the will or the proceedings for judicial settlement as to the validity or invalidity of paragraphs nineteenth and twentieth of the will relating to the use to which the residuary estate was to be put. The proceeding at bar is brought upon petition of two distributees of the deceased for a construction of those paragraphs alleging that the trust sought to be created by paragraph twentieth of the will was void for remoteness in vesting and in violation of the rule against perpetuities. Decision has gone against the petitioners in the lower courts and the case comes to us by permission of the Appellate Division. Paragraphs nineteenth and twentieth of the will read as follows:

“ Nineteenth. All the rest, residue and remainder of my property and estate, as well real as personal and wheresoever situated, which at the time of my death shall belong to me or be subject to my disposal by will, I give, devise and bequeath to my Trustee hereinafter named, in trust, nevertheless, to invest the same and to keep the same invested.and to receive the rents, issues, income and profits therefrom, and after defraying all taxes and other lawful charges upon the same, in event my Trustee can find my nephew, John James Roe, to use so much of the income of said trust fund as in the discretion of my Trustee shall be deemed proper, for the maintenance and support of my said nephew, John James Roe, and his children, if he have children, and I direct that the balance, if any of said income from said trust fund, shall become a part of the principal thereof at the end of each calendar year after said fund shall come into the hands of my said Trustee. In event my nephew, John James Roe, shall have died previous to my death and have left him surviving a child or children, I direct my trustee to use so much of the income of said trust fund as in the discretion of said Trustee shall be necessary and proper for the maintenance and support of said children, until all of said children shall have arrived at the age of twenty-one years. Upon the death of my nephew, John James Roe, and all of his said children, if he be survived by children, arriving at the age of twenty-one years, I direct my Trustee to divide the said estate among the children of my said nephew, John James Roe, giving to each child an equal share of said trust fund, and during the minority of such children, I nominate, constitute and appoint the Citizens Trust Company of Patchogue, as General Guardian for such child or children, until he or she shall arrive at the age of twenty-one years.
Twentieth. I hereby direct that my Executors hereinafter named shall have a period of two years in which to settle my said estate and that during said two years they shall make diligent and every necessary effort to find my said nephew, John James Roe, or his family, if he shall be dead and should have been survived by children, and in event in said period of two years my Executors are unable to locate my said nephew or any children, then and in that event, the provisions of paragraph Nineteenth of this my Last Will and Testament, relating to payments to him or to his children, shall not be binding upon my said Trustee and that my said Trustee shall dispose of the trust fund given to said Trustee by paragraph Nineteenth of said Last Will and Testament as follows: I direct that all of said trust fund shall be used for the purchase of a site and the erection of a building and the equipment thereof, as a hospital, for the use and benefit of the people of the Village of Patchogue, to be known as the John VanBrunt Roe Hospital, in honor of my father, John V. Roe. I hereby authorize and empower my Trustee to use such portion of said trust fund as in its discretion seems wise for the purpose aforesaid, retaining in its hands such portion of the fund as may be necessary to insure the care and repair of said hospital. In event that the Trustee shall deem it advisable to co-operate with others in the erection of a hospital and other funds shall be contributed for the erection of the same, I direct that my said Trustee shall personally direct the expenditure of all moneys used for such purpose from said trust fund, and shall at all times retain title to any property purchased by said Trustee for such purpose.”

The decree upon the judicial settlement of the accounts of the executors, among other things, provided that there was no vesting of the residuary estate in John James Roe or his family since he was not found after the exercise of due diligence within two years from the date of death of the deceased and that the trust fund passed to the trustee for the uses and purposes stated in paragraph twentieth of the will.

In his decision, however, the Surrogate states that the petitioners were not in a position to raise the issue as to what construction should be placed upon these clauses. One of the petitioners was cited upon the final accounting by the executors. Neither upon the proceeding for the probate of the will nor upon the proceedings for judicial settlement was any question directly or specifically raised as to the proper construction to be placed upon the two clauses in question. One of the petitioners, however, was neither a party to, nor cited upon either proceeding nor did he appear voluntarily. If it were to be held that the decree of judicial settlement was binding on the question of construction upon those who were parties to the proceeding, the adjudication is not binding or conclusive upon the party who was not cited and failed to appear (Matter of Killan, 172 N. Y. 547).

The sole question for consideration in this court is whether the trust for the hospital vested at the date of the testatrix’s death subject to be divested upon the contingency that her nephew or any of the nephew’s children be located within two years, or whether the vesting was held in abeyance for the two-year period. If the latter proposition is true, the gift to charity violates the rule against perpetuities (Gray’s “ Rule Against Perpetuities ” [3rd ed.], § 605; Cf. American Law Institute, Restatement of the Law of Trusts, § 401, subd. [2], Comment j). The applicable law relating to actual and possible remoteness is correctly stated, we think, upon authority, in 21 R. C. L. (at p. 289), in so far as applicable here, as follows: In enforcing the rule against perpetuities it is a firmly established principle that every future limitation of an estate is void as too remote unless it is apparent that it must take effect and vest, if at all, within the period allowed by the rule. The test therefore by which to ascertain whether a limitation over is void for remoteness is very simple. It does not depend on the character or nature of the contingency or event on which it is to take effect, for these may be varied to any extent. But it turns on the single question, whether the prescribed contingency or event may not arise until after the time allowed by law within which the gift over must take effect. * * * It is not sufficient that the future estate may by possibility become vested within the period allowed by the rule against perpetuities or even that it will probably become vested in such period. If it may possibly happen beyond the established time limits or if there is left any room for uncertainty or doubt on the point the limitation is void. If a future limitation may not by possibility take effect within the prescribed period it cannot be made good by subsequent events. In other words, the validity of the future estates under the rule against perpetuities depends not on what actually happens after the time at which the rights of the parties are fixed, but on what may happen as viewed at the time when the deed or will creating them takes effect.” • The question of the time of vesting is one of intent to be gathered from the instrument itself. The Surrogate must necessarily have held, upon the merits, that the gift vested at the moment of the testatrix’s death in the trustee for the benefit of the charity subject to being divested upon discovery of testatrix’s nephew within two years. From the language of the will it clearly appears that the testatrix’s paramount and primary purpose was to provide for the needs of her nephew or his family. It was only in the event that neither he nor members of his family could be found within a period of two years from the date of testatrix’s death that the charity became entitled, by the terms of the will, to the benefit of the residuary estate. The theory that the estate vested in the charity at the time of decedent’s death, subject to being divested upon discovery of the nephew or his family, is clearly contrary to the expressed intention of the testatrix. What she intended to provide and did provide was that the vesting of the estate should be held in abeyance for a period of two years during which a search should be instituted for the discovery of the nephew or, in the event of his death, of his children if he left any; that' if, during that period of two years such discovery should be made, the nephew or his family, as the case might be, should get the estate.- But the gift to the hospital was intended to be made not only at the expiration of the two-year period and then only, but additionally only in the event that during those two years the existence of the nephew or his family as the case might be could not be discovered. That the testatrix’s primary purpose was to provide for the needs of the nephew appears not only from the order of the numbering of the paragraphs but from the language of the will, paragraph twentieth providing that if the executors are unable to locate the nephew, or his children, if any, if he be not living, within two years, “ then and in that event ” only were the provisions of paragraph nineteenth annulled. The fact that the nephew was never found cannot help the validity of the disposition (Bishop v. Bishop, 257 N. Y. 40).

The courts are vigilant in protecting gifts to charity where such protection reasonably can be given (Gray’s “ Rule Against Perpetuities,” § 607), but “ in determining the question whether the vice of perpetuity attaches, it is of no significance that the limitations are to what are understood as charitable objects. Charitable donations of a public nature, form no exception to the law against perpetuities; at least while they remain contingent and executory. Estates, although given to charitable uses, must vest within the time prescribed by law ” (Rose v. Rose, 4 Abb. Ct. App. 108). Although the lower courts, in the cause of humanity,” have made a valiant effort against a flock of collaterals to so construe the will as to avoid remoteness of vesting, we think, as matter of law, that such construction cannot obtain and that the attempted disposition of the residuary estate by the testatrix was void. Each attempted donation was contingent and executory. There was no vested gift to any one as of the date of the death of the deceased. Since the gift was not made to depend upon a life or upon two lives in being but solely upon the uncertain event of the discovery of the nephew or of his family as the case might be, which might not happen within a period of two years, a perpetuity only was created. Remoteness of vesting affected both clauses of the will. Since the attempted gift under clause nineteenth was void as vesting was contingent upon an event other than the termination of one or two lives in being, the limitation over to the hospital, dependent upon the same contingency, cannot be sustained by regarding it as accelerated or vested as of the date of death of the deceased (Rose v. Rose, supra). As to the residuary estate, the deceased died intestate.

The orders should be reversed and the matter remitted to the Surrogate’s Court with instructions to proceed in accordance with this opinion, with costs to all parties appearing, payable out of the estate.

Crane, Ch. J., Lehman, Hubbs, Loughran and Finch, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


author: Per Curiam.

text:
    New Dorp Coal Corporation, Respondent, v. Irving Frankel et al., Defendants, and Sidney Raiken et al., Appellants.
    Argued November 15, 1939;
    decided November 28, 1939.

      Aaron Lipper and Philip Isaacs for appellants.

      Herbert Ginzberg and Solomon R. Agar for respondent.
   Per Curiam.

The contract in question is ambiguous. It was, therefore, error to strike out the first affirmative defense in the appellants’ answer and to grant summary judgment in favor of the plaintiff.

The order striking out the first affirmative defense in appellant’s answer should be reversed and the motion denied. Summary judgment in favor of the plaintiff should be reversed and a trial ordered, with costs to abide the event. J. * - •

Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


text:
    The People of the State of New York ex rel. William J. Schwarz, Appellant, against William S. Miller et al., Constituting the Board of Taxes and Assessments in the City of New York, Respondents.
    Argued September 25, 1939;
    decided November 28, 1939.

      Arthur Morris for appellant.

      William C. Chanler, Corporation Counsel (Seymour B. Quel, Arthur A. Segall and Murray Sendler of counsel), for respondents.
   Per Curiam.

Section 904 of the Charter of the City of New York (L. 1901, ch. 466, as amd. [formerly § 895]) prescribes the form of an application for correction of an assessment as follows: Such application shall be made in writing and shall specify clearly the objection thereto and the grounds for such objection * * This provision, we think, would naturally be read as a direction complete in itself and not as intended to be supplemented by the provisions of section 27 of the Tax Law (Cons. Laws, ch. 60) requiring that complaints in relation to assessments should be made under oath. (Cf. People ex rel. New York Water Service Corp. v. Hennessey, 265 N. Y. 609; People ex rel. American Sugar Refining Co. v. Sexton, 274 N. Y. 304.)

Relator’s application for correction of the assessment complied with the foregoing charter provisions and was sufficient without verification thereof.

The orders should be reversed, with costs in all courts, and the matter remitted to the Special Term for a determination of the merits.

Crane, Ch. J., Lehman, LoughRan and Finch, JJ., concur; Hubbs and Rippey, JJ., dissent; O’Brien, J., taking no part.

Orders reversed, etc.