author: Fuld, J.

text:
    Elton W. Hall, Respondent, v. Bank of Blasdell, Appellant.
    Argued December 1, 1953;
    decided March 4, 1954.

      John G. Wick for appellant.
    I. The payees herein were never, as a matter of law, the owners of the check in question. (Wolfin v. Security Bank of N. Y., 170 App. Div. 519, 218 N. Y. 709; Worth v. Case, 42 N. Y. 362.) II. Plaintiff is not a holder in due course. (Seaboard Nat. Bank v. Bank of America, 193 N. Y. 26; Shipman v. Bank of State of N. Y., 126 N. Y. 318; Cohen v. Lincoln Sav. Bank, 275 N. Y. 399.) III. Defendant is not precluded from setting up the forgery or want of authority. (Mercantile Nat. Bank of N. Y. v. Silverman, 148 App. Div. 1, 210 N. Y. 567.) IY. The finding of the trial court that defendant’s check was payable to bearer was erroneous. (Irving Nat. Bank v. Alley, 79 N. Y. 536; Turnbull v. Bowyer, 40 N. Y. 456; Shipman v. Bank of State of N. Y., 126 N. Y. 318.)

      Lee Towne Adams for respondent.
    I. The Gallegoses were the owners of the check in question and gave value for it. (Newman v. Frost, 52 N. Y. 422; Rice v. Mather, 3 Wend. 62; Dowe v. Schutt, 2 Denio 621; Rice v. Grange, 131 N. Y. 149.) II. Schneider Motors never had any interest in the cashier’s check, and, therefore, its indorsement was not necessary to pass title to the check. (Grannis v. Stevens, 216 N. Y. 583; Dollfus v. Frosch, 1 Denio 367; Dugan v. United States, 3 Wheat [U. S.] 172; Chautauqua Co. Bank v. Davis, 21 Wend. 584.) III. The legal effect of the affixing of the signature ‘ ‘ Schneider Motors ’ ’ to the buck of the check was to make it payable to the bearer. (Phillips v. Mercantile Nat. Bank, 140 N. Y. 556; Commercial Bank of Albany v. Hughes, 17 Wend. 94; Coggill v. American Exch. Bank, 1 N. Y. 113; Shipman v. Bank of State of N. Y., 126 N. Y. 318; Matter of Hammer, 237 App. Div. 497, 261 N. Y. 677.) IV. It would be unjust to allow the bank to be relieved from making payment on this check. V. Plaintiff was a holder in due course. (Cohen v. Lincoln Sav. Bank, 275 N. Y. 399.)
   Fuld, J.

On July 25, 1949, Thomas and Betty Gallegos, husband and wife, asked defendant bank for a loan of $1,000 in order to buy a certain automobile from Schneider Motors of Hamburg, New York. Defendant gave them a cashier’s check for $1,000, made payable “ to the order of Betty J & Thomas Gallegos ”, and, in return, took a note for the same amount and a chattel mortgage on the specific auto that was to be purchased. To assure itself that the check would be used to effect the purchase of the car, the bank, before delivering the check to the payees, had them indorse it to the order of Schneider Motors, Hamburg, N. Y.”

When the Gallegoses left the bank, they went, as they had said they would, to Schneider Motors. However, Alvin Snyder, a partner in the firm, refused to accept the check because of the recital typed on its reverse side by the bank that it was “ Payment in full covering one 1948 NASH 4 door Sedan. ’ ’ It appears that the Gallegoses had not told the bank the truth, for they had purchased the 4-door sedan described on the check from Schneider Motors sometime before and had actually paid everything due upon it except the sum of $200. It also appears that, in connection with Schneider’s refinancing of sales on credit, Commercial Credit Company had taken a chattel mortgage on the Gallegoses’ car as security. Reading between the lines, Snyder apparently believed that, by taking and later indorsing the check, he might somehow or other impair the finance company’s security. In any event, Snyder did not accept the check; after examining it, he returned it to Thomas Gallegos.

Several days later, on July 30, Ms wife went to plaintiff’s grocery store in Forestville — where the Gallegoses had formerly lived — and asked John Hall, plaintiff’s father, who was then in charge of the store, to cash the $1,000 check. At that time, it contained the following indorsements:

Pay to the order of Schneider Motors, Hamburg, N. Y.
Betty J. Gallegos
Thomas Gallegos
Payment in full covering one
1948 NASH 4 door Sedan
Motor # BE 91798 Ser # K 231878
Schneider Motors
Alvin Hamburg
Schneider [sic] N. Y.
Mr. Joseph
Nader ”

Schneider Motors’ name had been written without its authorization, and Alvin Snyder had not signed either his name or the company’s on the check, but those facts were not known to the Halls. After looking the instrument over, and after Mrs. Gallegos had signed her name below that of Nader, John Hall cashed the check: he gave her $880 in currency and $20 in groceries and used the remaining $100 to settle a grocery bill long overdue. Plaintiff deposited the check in his own bank, but defendant refused to honor or pay it.

The critical question for decision is, of course, whether plaintiff is a holder in due course. If, as the courts below have held, he is, then, the fact that the payees may have acted fraudulently or in bad faith toward defendant bank becomes immaterial (Negotiable Instruments Law, §§ 35, 96).

In reaching its decision, the trial court found as a fact — and the Appellate Division affirmed the finding — that plaintiff ‘ ‘ had no notice of any infirmity in the instrument or defect in the title of the person negotiating it ” (Negotiable Instruments Law, § 91). The Gallegoses’possession of the check after it had been indorsed ” by Schneider may, it is true, have appeared suspicious, but the existence of merely suspicious circumstances does not, without more, amount to notice of an infirmity or defect. To constitute such notice, the person to whom the instrument is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith ” (Negotiable Instruments Law, § 95). As the statute itself makes evident, its requirement “ is good faith, and bad faith is not mere carelessness. It is nothing less than guilty knowledge or willful ignorance. * * * One who purchases commercial paper for full value * * * is not bound at his peril to be upon the alert for circumstances which might possibly excite the suspicions of wary vigilance. He does not owe to the party who puts negotiable paper afloat the duty of active inquiry, to avert the imputation of bad faith. The rights of the holder are to be determined by the simple test of honesty and good faith, and not by speculations in regard to the purchaser’s diligence or negligence (Manufacturers & Traders Trust Co. v. Sapowitch, 296 N. Y. 226, 229-230; see, also, Cheever v. Pittsburgh, Chenango & Lake Erie R. R. Co., 150 N. Y. 59; Chapman v. Rose, 56 N. Y. 137, 140; Goodman v. Simonds, 20 How. [U. S.] 343; Goodman v. Harvey, 4 Ad. & El. 870.)

Applying the test thus laid down by statute and decision, it is manifest that the courts below were fully justified in concluding that plaintiff took the check in good faith and without notice of any infirmity or defect, and, indeed, defendant does not now dispute that. It does, however, contend that plaintiff is not a holder of the check, much less a holder in due course. In support of its contention, it asserts, first, that, since the check was not accepted or received by Schneider, it never became a negotiable instrument; second, that the unauthorized signing of Schneider’s name was a forgery; and, third, that, even if the Gallegoses did have the power to indorse and deliver the check to plaintiff, they, nevertheless, failed to do so.

Defendant’s first point is that the Gallegoses had no power to negotiate the check because they received it solely for the purpose of transmitting it to Schneider. According to defendant, the only delivery effected was a constructive one to Schneider, which, on the latter’s refusal to accept it, failed. A delivery may, of course, be constructive (Negotiable Instruments Law, § 2; see Worth v. Case, 42 N. Y. 362, 367; Wolfin v. Security Bank of N. Y., 170 App. Div. 519, affd. 218 N. Y. 709), but that was not here the case. Indeed, in order to say that there was such a delivery to Schneider, it would be necessary to find — contrary to the fact — that defendant regarded the payees as mere messengers, having no interest in the check, and intended to make Schneider, to which it owed nothing, the “ real owner.” (See Wolfin v. Security Bank of N. Y., supra, 170 App. Div. 519, 522, affd. 218 N. Y. 709.) There was no indebtedness or other obligation to Schneider to warrant the conclusion that the drawer, by handing the check to the Gallegoses, intended to confer on Schneider a proprietary interest in it. (Cf. Wolfin v. Security Bank of N. Y., supra, 170 App. Div. 519, affd. 218 N. Y. 709.) While the bank may have delivered the check to the payees on the condition that they use it only for the purchase of a car (Negotiable Instruments Law, § 35), the existence of such a condition did not, and could not, change the actual delivery to one party into a constructive delivery to the other.

By making the Gallegoses the payees of the check and delivering it to them, defendant bank empowered them, so far as an innocent purchaser was concerned, to negotiate it as they saw fit. It is of no consequence that, before delivering the instrument, the bank had the Gallegoses indorse it to Schneider. An indorsement is incomplete, and, indeed, may be disregarded and ignored (Negotiable Instruments Law, § 78; see McNeill v. Shellito, 185 App. Div. 857, 860; Dugan v. United States, 3 Wheat. [U. S.] 172, 183), until the instrument is delivered (Negotiable Instruments Law, § 2), and in this case the Gallegoses never did deliver the check to the indorsee Schneider. That party, having refused to accept it, acquired no interest, with the inevitable consequence that it remained as fully negotiable without Schneider’s signature as it would have been with it.

Since, then, the check was never negotiated to Schneider (Negotiable Instruments Law, § 60) and its signature never became necessary, it is no defense that Schneider’s name was inserted without its authorization. Not every unauthorized “ indorsement ” is a forgery. A necessary element is that the signature be one essential to the further negotiation of the check; as the Negotiable Instruments Law indicates, an unauthorized signature is significant only if the person seeking to enforce payment has acquired title through or under such signature ” (Negotiable Instruments Law, § 42). In other words, the inscription of Schneider’s name could not in any way detract from plaintiff’s title to the check or his rights thereunder.

The sole question remaining, therefore, is whether the Gallegoses, who had the power to negotiate the check to plaintiff, actually did so by proper indorsement and delivery. They had initially indorsed the check over to Schneider. True, after Schneider had refused to accept it, they did not indorse it again, but it was not essential that they do so. The trial court found — and no one has questioned it — that both of the Gallegoses then treated the indorsement to Schneider as “ fictitious.” Consequently, the check became, without more, a bearer instrument, even though only one of the payees, Betty, thereafter •> indorsed it in blank. So far as is ascertainable, either the husband or the wife wrote Schneider’s name on the check before it was delivered to plaintiff. However, the addition of that name had neither legal significance nor effect, for, as already noted, the check had by then become a bearer instrument. It is settled that the holder of a check, though he has indorsed it specially to one person, may, without either striking out the indorsement or adding another, negotiate it to a third person (Negotiable Instruments Law, § 28, subd. 3; see Phillips v. Mercantile Nat. Bank, 140 N. Y. 556; Coggill v. American Exch. Bank, 1 N. Y. 113; Matter of Hammer, 237 App. Div. 497, affd. 261 N. Y. 677; see, also, Britton on Bills and Notes, p. 697.) In view of the fact that the indorser no longer intends to confer on the indorsee any interest in the check, the law regards the name used as fictitious and treats the check — thus made payable to the order of a fictitious person — as payable to bearer. As this court wrote in the Phillips case (supra, 140 N. Y. 556, 562): " The names he used were, for his purposes, fictitious, because he never intended that the paper should reach the persons whose names were upon them. * * * Concededly, if the names of the payees were of fictitious persons, the Sumter bank would have had no claim upon the defendant; how, then, can the transaction be said to assume a different aspect because the names adopted were of known persons? That the intention was to treat them as being of fictitious persons is manifest.” (Emphasis supplied.)

While this rule is known as the “ fictitious payee ’ ’ doctrine, it applies to indorsees (Negotiable Instruments Law, § 28, subd. 3; see, also, Britton, op cit., p. 696), and, as the quotation from the Phillips case illustrates, they need not even be ££ fictitious.” The only operative factor is the intent of — as the case may be — the indorser or the drawer. (See Phillips v. Mercantile Nat. Bank, supra, 140 N. Y. 556; Coggill v. American Exch. Bank, supra, 1 N. Y. 113; Matter of Hammer, supra, 237 App. Div. 497, affd. 261 N. Y. 677; cf. Cohen v. Lincoln Sav. Bank, 275 N. Y. 399; Shipman v. Bank of State of N. Y., 126 N. Y. 318.) If the drawer or indorser does not intend the named payee or indorsee to receive the check, that party is deemed a merely nominal or “ fictitious ” indorsee or payee. And, since the indorser or drawer could as easily have made the check payable to bearer, the law regards him as having done so.

It is immaterial, therefore, that, when the indorsement to Schneider was written, both defendant bank and the payees intended that Schneider receive the check. In the first place, the intent of defendant is wholly unimportant; whether the name of the indorsee is££ fictitious ” depends on the knowledge and intent of the ££ person making [the check] so payable” (Negotiable Instruments Law, § 28, subd. 3). In this case, only the payees, not the drawer bank, fit this description, and the applicability of the statutory provision must, therefore, be determined solely on the basis of their thinking and intent. Secondly, where an indorsee has refused to accept a check and the payee-indorser delivers it to a third person, it is the indorser’s intent at that time, at the time of delivery, that controls. (See Seaboard Nat. Bank v. Bank of America, 193 N. Y. 26, 33; Horstman v. Henshaw, 11 How. [U. S.] 177; Ritter v. Moore, 64 Idaho 144.) If he then regards the check as a bearer instrument, his earlier intention, formed when he had no reason to believe that the named indorsee would refuse to accept it, is of no moment. To the plaint that the bank should not be burdened with the loss, since it is innocent of any wrongdoing, the answer is simple: Hall is a holder in due course and equally innocent. It ill behooves defendant — which could easily have prevented the^ fraud by making the check payable to Schneider Motors — to seek to foist the loss upon plaintiff, for, as we have written (Island Trading Co. v. Berg Bros., 239 N. Y. 229, 233; also, Zendman v. Harry Winston, Inc., 305 N. Y. 180, 186), as between two innocent victims of a fraud, “ the one who made possible the fraud on the other ” should bear the loss.

The judgment appealed from should be affirmed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Froessel and Van Voorhis, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. John Harris, Appelant.
    ' Argued December 2, 1953;
    decided March 4, 1954.

      Gilbert S. Rosenthal, Nicholas Atlas and Matthew H. Brandenburg for appellant.
    The evidence being insufficient to warrant a finding of guilt of this defendant beyond a reasonable doubt, the court erred in submitting the question of guilt, as to any degree of homicide, to the jury. (Kotteakos v. United States, 328 U. S. 750; People v. Bennett, 49 N. Y. 137; People v. Weiss, 290 N. Y. 160; People v. Fitzgerald, 156 N. Y. 253; People v. Bazezicz, 206 N. Y. 249; People v. Woltering, 275 N. Y. 51; People v. Suffern, 267 N. Y. 115; People v. Taddio, 292 N. Y. 488; People v. Joyce, 233 N. Y. 61; People v. Hirsch, 254 N. Y. 570; People v. Metelski, 256 N. Y. 658.)

      Frank S. Hogan, District Attorney (Charles W. Manning and Richard G. Denzer of counsel), for respondent.
    Defendant’s guilt was established beyond a reasonable doubt. (People v.
      Willett, 213 N. Y. 368; People v. Place, 157 N. Y. 584; People v. Conroy, 97 N. Y. 62; People v. Birnbaum, 208 App. Div. 476; People ex rel. Perkins v. Moss, 187 N. Y. 410; People v. Johnson, 185 N. Y. 219; People v. Miller, 247 App. Div. 489.)
   Desmond, J.

On this appeal from a felony murder conviction, the question is as to the sufficiency of the proof. Pointing up that question is an able dissenting opinion in the Appellate Division in which the view is expressed that “ the proof is insufficient to support a finding beyond a reasonable doubt that the defendant was the one who strangled the deceased, or that such strangulation occurred during the period between the inception and consummation of the rape (282 App. Div. 156, 160.) On the other hand, the majority opinion in the Appellate Division, with which we agree, carefully analyzed the record and found therein “ a well-connected sequential chain of circumstantial and independent proof from which * * * a homicide in connection with the rape could be found and this is cemented together solidly by the admissions of the defendant ”. (282 App. Div. 158.)

The theory of the prosecution and conviction was that defendant, early in the morning of November 12, 1950, on a hallway landing in a tenement building at 2407 Seventh Avenue, New York City, killed by strangulation, while engaged in raping or attempting to rape her, a woman named Alma Miller, who lived in the next door building, No. 2409 Seventh Avenue. The body of the woman, choked to death, was found lying on the fifth or top floor stair landing of No. 2407 at about seven o’clock in the morning. The time of death could not be scientifically established, but defendant and the woman had been seen together on the next lower, or fourth floor landing of that building about one o’clock that morning. While there was no conclusive proof of a sexual assault, the woman’s underclothes were torn in a way to suggest just that. Defendant, after his arrest, made important admissions, to which we will refer again, that he had been in the building with Alma Miller, that they had a tussle, that he had pushed her, that she had fallen, and that he had then had sexual intercourse with her. Tied, as were those admissions on the trial, to other circumstantial evidence hereinafter referred to, the totality of proof was weighty enough, in our opinion, to convince a jury of defendant’s guilt, beyond a reasonable doubt.

Defendant had known Alma Miller for some months, and, earlier that night, was with her and with one of the prosecution’s witnesses, Regina Joiner, in a barroom near Alma Miller’s home, from which place the three walked to the witness’ home, arriving there about midnight, during which walk, according to the witness, defendant asked Alma Miller to spend the night with him, she refused, and he said: “ I am going to bed with you some place tonight Alma Miller had been drinking, and after her death her brain showed a “ 3 plus ’ ’ quantity of alcohol, enough, according to an expert witness, to make most persons show signs of intoxication such as staggering. After the witness Joiner had left defendant with Alma Miller, the latter two were next seen and heard at about one o’clock a.m., in the building at 2407 Seventh Avenue, on the fourth floor landing, one floor below the landing on which the body was found about six hours later. The witness Whitfield testified that, hearing some noise she came out of her fourth floor apartment, saw Alma Miller in the hallway, then defendant came down the stairs and asked the witness as to the whereabouts of “ apartment seven ”. The witness replied that there was no such apartment in that house, whereupon defendant asked Alma Miller to “ come on up ” and the latter answered: “ That will be the roof. I’m no damn fool ’ ’. Defendant had a package in his hand at that time. Elsewhere in the proof, it is shown that Alma Miller had bought some groceries earlier that evening and that, about two o’clock in the morning of November 12th, defendant came to the next door apartment where Alma Miller lived, that he was “ shaking ”, that he handed to another woman who lived there a paper bag containing groceries saying that Alma had sent it, that defendant then asked for a man, one Dixon with whom Alma Miller lived at the No. 2409 Seventh Avenue apartment, saying that “Alma’s downstairs, and I can’t get her to come upstairs”, that defendant and Dixon went downstairs and a few minutes later Dixon came back alone and said that Alma was not down there, and that, later that morning, defendant twice phoned this witness, asking how Alma was feeling. We think these activities of defendant justified a conclusion that he was attempting to conceal his guilt (see People v. Willett, 213 N. Y. 368, 386; People v. Place, 157 N. Y. 584, 598).

Now let us go back to the occurrences at 2407 Seventh Avenue. The witness Whitfield, who saw defendant and Alma Miller on the fourth floor landing and heard their conversation, saw them, then, start downstairs. Another tenant whose apartment was on the fifth floor of that building, heard noises in the fifth floor hallway about one o’clock that morning, and about seven o’clock discovered the body on that stair landing. It would seem that defendant or Alma Miller, or both of them, had thought that they were in No. 2409, the identical-in-appearance next door tenement where the Miller woman lived. The testimony of the witness Whitfield had defendant and the victim starting downstairs from the fifth floor after the conversation she related, but the witness Green heard noises on the fifth floor landing about that same time and, as we shall see, defendant’s own admission to the police was that he had a tussle and intercourse with Alma Miller on the fifth floor landing at the No. 2407 building.

Two detectives testified to oral statements made by defendant, while in custody, several hours after the finding of the body. Substantially, they were to this effect: defendant first said that when he and the Miller woman came to her apartment house she was too drunk to get upstairs and that defendant went up and got Dixon but that, when he and Dixon came down to the building entrance, Alma was gone; later, however, defendant told the detectives that he had been on the fifth, or top floor landing of 2407 Seventh Avenue, with Alma, that they had a tussle, that he pushed her, that she fell to the floor, that he then had intercourse, that he left her there and went next door to get Dixon, but that he did not grab the woman’s throat, or rape her, or tear her underclothes. While making these statements to the detectives, defendant admitted that he was misleading Dixon when he brought Dixon downstairs for the supposed purpose of helping Alma who, as defendant falsely told Dixon, was at the entrance to No. 2409, too drunk to walk upstairs. Defendant, when he staged that incident and took Dixon downstairs for that feigned purpose, knew, according to his admissions to the detectives, that Alma Miller was lying on an upstairs floor in the building next door.

About 3:40 o’clock on the afternoon of the day the body was found, a question-and-answer statement was taken from defendant by an assistant prosecutor, and reduced to writing. In that interview defendant told the questioner that he had been with Alma in the building at No. 2407, and had had intercourse with her on the floor above the floor at which they had been told by some woman tenant that there was no apartment numbered seven in that building. During that questioning, defendant denied that he had tussled with Alma, but said that she had fallen downstairs after the intercourse, that when he left her he knew she had been hurt, and that he had picked her up and “ leaned her in the corner ”. This question-and-answer statement is confused in places, and it is, of course, not a confession ” of the crime of which defendant was convicted, but it does contain the important admissions that defendant struggled with the woman and that she fell, and that they had sexual congress at the place where she was later found, and that after-wards she “ couldn’t move ”.

Defendant testified at the trial, accusing police officers of threatening him and beating him to make him talk, but these charges were denied and made out no more than a question of fact for the jury. In his trial testimony, defendant said that he had been with the deceased in two barrooms that evening and later had been with her in 2407 Seventh Avenue, that she told him she lived in that building in apartment seven, and that he had inquired for apartment seven. At the trial, he denied having sexual intercourse with Alma Miller and said that she had fallen on the stairs, that he had helped her down to the front stoop, that because she could not walk alone he had gone up and gotten Dixon, but that Alma was gone when they came down. He testified that, before talking to witness Whitfield at the fourth floor, he had gone up to the fifth floor, alone, looking for apartment seven. 1

Let us now take up, specifically, the two questions as to which doubt was expressed in the Appellate Division dissent: first, as to whether the proof sufficiently shows that defendant strangled Alma Miller, and, second, as to whether the record sufficiently shows that the strangulation occurred during the rape or attempted rape. As to the strangulation, there is missing here, as in many another circumstantially proven criminal case, any direct proof that defendant did the strangling. But he had made, after she had refused his demands, what amounted to threats that he would have intercourse with the girl, he admitted having a tussle with her, and that she fell to the floor, and that afterwards she could not walk. It is, of course, conceivable, that after defendant left the girl in the hallway, someone else came upon her and strangled her, but that is a possibility, merely, of the same kind present in many another affirmed criminal case. The question of law is not whether someone else may possibly have strangled her — it is whether the proof points logically to defendant’s guilt and excludes, to a moral certainty, every other reasonable hypothesis, that is, whether the proven facts are consistent with, and point to, defendant’s guilt and are inconsistent with his innocence (People v. Weiss, 290 N. Y. 160, 163; People v. Taddio, 292 N. Y. 488, 489). We see no break here in the chain of evidence which points to defendant, and to no one else. Unless we are to demand absolute or metaphysical certainty, in which event there never could be a conviction on circumstantial evidence alone, this proof meets the established test. Likewise, as to whether the killing was done while a rape or attempt to rape was being committed. That there was a rape (or attempt) is fairly inferable from this proof: defendant’s threat, his tussle with the girl, her torn underclothes, her drunken condition, his statement that she fell ” to the floor before the intercourse. The trial court in his charge authorized the jury to find either rape by force or fear, or because of intoxication preventing resistance (Penal Law, § 2010). We think the proof justified such instructions. The autopsy report and defendant’s statements show a high content of alcohol in deceased, and inability to walk or stand. As to whether the strangling was done while rape or attempted rape was underway, we must look to the same proof. There was a tussle, there was resistance, the victim’s clothes were torn open, there was intercourse, she was strangled to death. At one time or other, defendant really admitted everything except the actual physical fact of strangling. His demeanor and actions immediately afterwards and some hours later showed that he was troubled about what he had done and was trying to conceal it. His character was such that he in all probability was not merely being solicitous, when he made the inquiries as to Alma’s condition, but that he was gravely concerned about a grave criminal act.

We see no substance in defendant’s lightly mentioned argument that error was committed in sending to the jury the common-law homicide theory, and the degrees thereof, as well as felony murder. Since the jury found guilt of felony murder only, in a clearly stated verdict, it follows that defendant was not prejudiced by the submission of other charges, even though the submission of those others may have been (we express no opinion on this) erroneous. We have in mind that this judgment, affirmed by the Appellate Division, leaves open to us not the question of weight of evidence, but the question of whether the proof was such as could convince the jury of defendant’s guilt, beyond a reasonable doubt. We think it was sufficient.

The judgment should be affirmed.

Lewis, Oh. J., Conway, Dye, Fuld, Feoessel and Van Vooehis, JJ., concur.

Judgment affirmed.


author: Desmond, J. Conway, J.

text:
    The People of the State of New York, Respondent, v. Samuel J. Gould, Appellant.
    Argued December 1, 1953;
    decided March 4, 1954.

      Harry G. Anderson for appellant.
    I. Appellant was not a ‘ ‘ vagrant ’ ’ within the meaning of section 887 of the Code of Criminal Procedure. (People v. Sohn, 269 N. Y. 330; People v. Luechini, 75 Misc. 614; People v. Pieri, 269 N. Y. 315; People v. Cowie, 88 Hun 498; People v. Ward, 95 Misc. 508; People v. Reynolds, 300 N. Y. 616; People v. Choremi, 301 N. Y. 417.) II. Appellant’s guilt was not established beyond a reasonable doubt. (People v. Ledwon, 153 N. Y. 10; People v. Plath, 100 N. Y. 590; People v. Owens, 148 N. Y. 648; People v. Pearson, 188 Misc. 744; People v. Kollender, 169 Misc. 995; Steinert v. Sobey, 14 App. Div. 505; People ex rel. Stolofsky v. Superintendent of State Inst., 259 N. Y. 115.) III. Proof of appellant’s good character and reputation was sufficient to create reasonable doubt of guilt. (People v. Colantone, 243 N. Y. 134; People v. Conrow, 200 N. Y. 356; People v. Sylvester, 178 App. Div. 923.) IV. As a matter of law, appellant was improperly convicted of violating clause (b) of subdivision 4 of section 887 of the Code of Criminal Procedure. (People v. Anonymous, 161 Misc. 379.) V. The trial court was manifestly unfair and biased against appellant. (People v. Boro, 237 App. Div. 853; People v. Dryden, 250 N. Y. 154.) VI. The offense of which appellant was accused and convicted was wrongfully and unlawfully incited and instigated by the policewoman. (People v. Mills, 178 N. Y. 274; Sorrells v. United States, 287 U. S. 435; People v. Conrad, 102 App. Div. 566, 182 N. Y. 529.)

      Frank S. Hogan, District Attorney (Paul A. Stone and Charles W. Manning of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. (People v. Vatides, 284 N. Y. 731; People v. Fitch, 282 N. Y. 777; People v. Phelps, 189 App. Div. 775; People v. Mills, 178 N. Y. 274; People
      v. Moore, 142 App. Div. 402, 201 N. Y. 570.) II. Defendant received a fair trial. (People v. Pindar, 210 N. Y. 191; People v. Nixon, 248 N. Y. 182; People v. Knapper, 230 App. Div. 487.)
   Desmond, J.

Defendant’s conduct, vicious as it was, did not make out the offense of vagrancy under clause (b) of subdivision 4 of section 887 of the Criminal Code. Subdivision 4 condemns various aspects and incidents of pandering and prostitution. What defendant did here was to suggest to a woman of good character, that she become a prostitute under his management, and she, of course, rejected the proposal at once. In extreme literalness of interpretation, it might perhaps be said that one who makes such a rejected suggestion “ offers to secure another for the purpose of prostitution ”. However, it is very seldom in our criminal law that a rejected suggestion of wrongdoing-amounts to a substantive crime or offense, and, even under the broad language of section 887, vagrancy is not proven unless the defendant has actually acted- as a pimp or prostitute, and has gone beyond tentative steps toward entering the business. Clause (b) of subdivision 4 describes a person who offers the services of another for purposes of prostitution or offers to secure the services of another for those purposes. Defendant did neither of those things, since there is no showing that he had a prostitute or customers available, but only that he was hoping to obtain a prostitute for whom he could act as procurer.

The judgments should be reversed, and the complaint dismissed.

Conway, J.

(dissenting). This is an appeal by permission of an Associate Judge of this court from a judgment of the Appellate Part of the Court of Special Sessions of New York City, affirming the judgment of the City Magistrate’s Court of the City of New York which adjudged the defendant guilty of vagrancy as defined by clause (b) of subdivision 4 of section 887 of the Code of Criminal Procedure. The trial court imposed a sentence of imprisonment for a term of ninety days.

In January of 1952, a policewoman impersonated a young-woman who had placed an advertisement in a large New York daily in an endeavor to obtain a position as bookkeeper. The advertisement had carried her telephone number and at that number the defendant had telephoned the young woman. The defendant was admitted to the Bar but was engaged in the jewelry business. The policewoman gave the name of the young woman to whom defendant had spoken the previous day and said she had come to see him about the job which had been the subject of their discussion. The defendant, after referring to a selling position open in his business, began to make inquiries of a personal and most intimate character and then told her that her financial return could be exceptionally high if she were willing to have affairs with his customers. The following day they met at a restaurant selected by defendant in the Times Square area. They sat at a secluded table and had lunch. The defendant offered to set her up in an apartment where they would live as man and wife and said that he would give her $50 per week and buy her clothes. In addition, he said, he would arrange to send at least four men to see her daily whom she could charge $10 each for acts of sexual intercourse. Defendant also asked whether she engaged in two forms of abnormal sexual activity. He then brought her to a hotel where he was unable to obtain accommodations to suit him and then said they would seek accommodations in another hotel. The policewoman then signalled to a detective who had been following them and defendant was arrested. Those were the facts as outlined and found by the Magistrate and as affirmed below.

The defendant was charged with violating clause (b) of subdivision 4 of section 887 of the Code of Criminal Procedure. That section reads in part: “ Who are vagrants. The following persons are vagrants: * * * 4. A person (a) who offers to commit prostitution, or (b) who offers or offers to secure another for the purpose of prostitution, or for any other lewd or indecent act; or (c) * *

Sexual immorality conceived of as a form of vagrancy is of fairly recent origin and is not rooted in ancient law. The English vagrancy statutes had a very different history and purpose. (See Stephen, History of the Criminal Law of England [1883], Yol. Ill, pp. 203, 204, 266-275.) In New York common prostitutes were classed as disorderly persons in 1788 but it was not until subdivision 4 of section 887 of the Code of Criminal Procedure was enacted in 1915 that any specific acts incidental to prostitution were made punishable as vagrancy. (L. 1788, ch. 31, § 1; L. 1915, ch. 285, § 1.)

Under clause (a) of subdivision 4 (one “ who offers to commit prostitution”) women have always been convicted for “ offering ” without doing more than the “ offering ” — that was the purpose of the statute. When clause (b) of subdivision 4 was enacted originally it defined as a vagrant a person 1 ‘ who offers or offers to secure a female person for the purpose of prostitution, or for any other lewd or indecent act ”. (Emphasis supplied.) That, however, limited the definition of vagrancy to one who offered a female person or offered to secure a female person for the commission of the prohibited acts. The Legislature was not satisfied with that limitation, however, and four years later, in 1919, amended the subdivision so as to delete the words “ a female person ” and to substitute therefor the word another ”. (L. 1919, ch. 502, § 1.) The Legislature has the power in enacting a statute to define the terms used therein (Matter of Bronson, 150 N. Y. 1; McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 75; People ex rel. Champlin v. Gray, 185 N. Y. 196, 200) and by the amendment in 1919 it evidenced its clear intent to enlarge the definition of vagrant to include one who offered to secure males for the purpose of prostitution, or * * * other lewd or indecent act ”.

In view of the affirmance of the facts below, there can be no question as to the commission of acts by defendant which bring him within the provisions of clause (b) of subdivision 4. As the District Attorney writes in his brief: ‘ The defendant argues also that the proof against him was deficient because he could not have offered to secure males for the purpose of prostitution, ’ since a male cannot commit prostitution, and because there was no proof that he was to secure them 1 for any other lewd or indecent act ’ (brief pp. 33-37, 38). Without dwelling upon the logical infirmities of that argument, we think it sufficient to note that the defendant concedes that the proof tended to establish ‘ that defendant offered others or offered to secure others to have sexual intimacies with the complaining witness ’ (id., p. 36), which we add, would obviously be ‘ lewd or indecent ’ acts within the intendment of the statute.” (Emphasis supplied.)

The defendant makes many contentions which we find without merit. Briefly some of them are: (a) that it was not established that he was' either without visible means of support or employment or that his living was derived from the conduct of which complaint was made or that his conduct was habitual. That is not necessary. We disposed of that contention to the contrary in People v. Vatides (284 N. Y. 731). (b) That as a matter of law he may not be convicted of the offense charged for the reason that a male cannot be guilty of committing prostitution. Assuming that to be true, under the clear wording of the statute and its history, the male may offer another to a male or female, for the purpose of prostitution, or offer to secure another for a male or female for the same purpose and thus be guilty of a violation of clause (b) of subdivision 4 of section 887. The words of the statute — “person” and “another” — are so all-embracing and inclusive as to make it impossible to reach the conclusion that the Legislature in using them did not mean what it said.

The judgment of the Appellate Part of the Court of Special Sessions should be affirmed.

Dye, Fuld and Van Voobhis, JJ., concur with Desmond, J.; Conway, J., dissents in opinion in which Lewis, Ch. J., and Fboessel, J., concur.

Judgments reversed, etc.


author: Conway, J. Fuld, J.

text:
    Marion E. Lachs, Respondent, v. Fidelity & Casualty Company of New York, Appellant.
    Argued October 7, 1953;
    decided March 4, 1954.

      Henry J. Bogatko, Archie M. Stevenson and William M. Keegan for appellant.
    I. Defendant’s insurance policy in clear and unambiguous language provided that it covered only flights by scheduled airlines. Sadie Bernstein at the time of her death was not on a flight by a scheduled airline. (Metzger v. Aetna Ins. Co., 227 N. Y. 411; Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 N. Y. 82; Slater v. Fidelity & Cas. Co. of N. Y., 277 App. Div. 79; Putnam v. Air Transport Assn. of America, 112 F. Supp. 885; Apgar Travel Agency v. International Air Transport Assn., 107 F. Supp. 706; United States v. Eagle Star Ins. Co., 196 F. 2d 317; S. S. W., Inc., v. Air Transport Assn. of America, 191 F. 2d 658; New England Air Express v. Civil Aeronautics Bd., 194 F. 2d 894; Weinberg S Holman v. Providence Washington Ins. Co., 254 N. Y. 387; Kean v. National Sur. Co., 241 N. Y. 252; Rosenthal v. American Bonding Co., 207 N. Y. 162; Royster Guano Co. v. Globe & Rutgers Fire Ins. Co., 252 N. Y. 75.) II. As the provisions of the policy are clear and unambiguous, no proof of surrounding circumstances or other extrinsic aids to interpretation are material or necessary for the construction of the policy sued upon. (Brainard v. New York Central R. R. Co., 242 N. Y. 125; Matter of Davis v. Block & Smith, 297 N. Y. 20.) III. The policy is not ambiguous. (Houlihan v. Preferred Acc. Ins. Co., 196 N. Y. 337; Gorman v. Fidelity & Cas. Co. of N. Y., 55 F. 2d 4.) IV. Where, as in the present case, no disputed issues of fact exist, it was error to deny defendant’s motion for summary judgment. (Brady v. Cassidy, 104 N. Y. 147.)

      A. David Bosen and Meyer Licht for respondent.
    I. The coverage clause of the insurance contract is not clear and unambiguous. It is susceptible of varying interpretations. (Weisman v. Guardian Life Ins. Co. of America, 273 App. Div. 761; United States v. California, 297 U. S. 175; Fordham Bus Corp. v. United States, 41 F. Supp. 712; McCogney v. Mutual Life Ins. Co. of N. Y., 103 F. 2d 649; Houlihan v. Preferred Acc. Ins. Co., 196 N. Y. 337; Hartol Products Corp. v. Prudential Ins. Co. of America, 290 N. Y. 44; McMasters v. New York Life Ins. Co., 183 U. S. 25; Rappaport v. Phil Gottlieb-Sattler, Inc., 280 App. Div. 424; Matter of Western Union Tel. Co. [ACA], 299 N. Y. 177.) II. Where ambiguity exists in the terms of the contract and triable issues of fact arise, a motion for summary judgment must be denied. Where the insurance policy is ambiguous, that construction of the policy will be adopted which is most favorable to the insured. (Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167; Killian v. Metropolitan Life Ins. Co., 251 N. Y. 44; Kocak v. Metropolitan Life Ins. Co., 237 App. Div. 780, 263 N. Y. 518; Marcus v. United States Cas. Co., 249 N. Y. 21; Janneck v. Metropolitan Life Ins. Co., 162 N. Y. 574.) III. A motion for summary judgment must be denied where triable issues exist meriting a trial. (Brawer v. Mendelson Bros. Factors, 262 N. Y. 53; Piedmont Hotel Co. v. Nettleton Co., 263 N. Y. 25; Quinn v. Metropolitan Life Ins. Co., 187 Misc. 629; Horby Realty Corp v. Yarmouth Land Corp., 270 App. Div. 696; Di Menna & Sons v. City of New York, 301 N. Y. 118; Esteve v. Abad, 271 App. Div. 725; Dunckel v. Parsons, 274 App. Div. 539, 301 N. Y. 572; Kenyon v. Knights Templar & Masonic Mut. Aid Assn., 122 N. Y. 247.) IV. The loss of life of Sadie Bernstein was covered by the policy. (Civil Aeronautics Bd. v. Modern Air Transport, 179 F. 2d 622.)

      . Although this regulation (§ 292.1) defined, in terms, only nonscheduled operations, by implication it necessarily defined scheduled operations as well. And the Board later made the implication express in one of its decisions — Large Irregular Carriers, Exemptions, 11 C.A.B. 609, 612 — wherein it said that under section 292.1 a carrier was scheduled, if it “held out to the public by advertisement or otherwise that it would operate one or more airplanes between such [designated] points regularly or with a reasonable degree of regularity.”

   Conway, J.

This is a motion by defendant insurance company for summary judgment in an action by the daughter beneficiary named in an airplane trip insurance contract. Special Term denied the motion and the Appellate Division affirmed, ruling that “ the language of the coverage was not so plain and unmistakably clear as to compel dismissal of the complaint as a matter of law on the merits and the granting of summary judgment in defendant’s favor.” (281 App. Div. 633, 635.) The Appellate Division granted leave to appeal upon two certified questions.

There are some undisputed facts. Thus, it is clear that the day before her death, the decedent, a resident of New York City, visited a tourist agency in New York City and made arrangements to fly on the following day to Miami, Florida. She received an exchange order ” which she brought to Newark Airport at 8:00 a.m. on the following morning. She purchased AIRLINE TRIP INSURANCE ” in the sum of $25,000 from an automatic vending machine. She then went to the Consolidated Air Service counter and completed her flight arrangements, with one McManus of the agency, to fly to Miami on a Miami Airline, Inc., plane and mentioned to him her purchase of the insurance and her hopes for a good flight. She later entered the plane, after a delay, the reason for which is not disclosed in the record, and in less than an hour was dead as the result of a crash.

Plaintiff claims that the vending machine was situated in front of the Consolidated Air Service counter at which decedent obtained her transportation ticket. Pictures of the machine and affidavits indicate that in letters ten times larger than any other words on the machine and in prominent lighting, appeared the words “ AIRLINE TRIP INSURANCE ”. Over those words was a well-illuminated display of airplanes flying round and round, and in large characters appeared the words and numerals “ 25$ For Each $5,000 Maximum $25,000 ”. Below that on a placard, in letters many times the size of the other words thereon, we find:

“ 'DOMESTIC ’

AIBLINE TBIP INSUBANCE

25 ^ fob each $5,000 maximum $25,000 ”.

Below in much smaller print on the same placard appears:

££ Covers first one-way flight shown on application (also return flight if round trip airline ticket purchased) completed in 12 months within or between United States, Alaska, Hawaii or Canada or between any point therein and any point in Mexico, Bermuda or West Indies on any scheduled airline. Policy void outside above limits. For 1 international ’ coverage see airline agent.”

The application mentioned on the placard is obtained by inserting 25^ in a slot for each $5,000 of insurance desired. Upon such insertion, a small slot of approximately one inch opens and the application for insurance is presented. It reads as follows:

££ I hereby apply to Company named below for Airline Trip Insurance to insure me on one Airline trip between: Point of Departure ?......Destination?......And return......Beneficiary’s hornet......Beneficiary’s Street Address?......Beneficiary’s City?........Beneficiary’s State?........Name of Applicant (please print) Signature of Applicant ”.

Upon completion of the application, the applicant presses a button and there comes from the machine a policy of insurance. The policy is approximately eleven inches in height and is printed on both sides — thus there are twenty-two inches of printed matter. However, the purchaser does find across the front of the policy in type many times larger than all the other printing on the page and obliterating some words of the policy: ££ THIS POLICY IS LIMITED TO AIBCBAFT ACCIDENTS BEAD IT CABEFULLY ”. There is also an envelope in the machine to mail to the beneficiary, for the insured is not expected to read the policy on the plane. The envelope has printed on it: ££ AIBLINE TBIP INSUBANCE ”.

Plaintiff says that some but not all machines have a specimen policy attached and that it has not been established that the machine from which decedent purchased her policy had a specimen attached. Be that as it may, the defendant has presented as an exhibit a specimen policy and the words quoted (supra): “ THIS POLICY IS LIMITED TO AIRCRAFT ACCIDENTS READ IT CAREFULLY ” obliterate the words: “Civilian Scheduled Airline ” in the coverage clause so that they cannot be read.

This was the “ coverage ” clause in the policy on page 1: “ This insurance shall apply only to such injuries sustained following the purchase by or for the Insured of a transportation ticket from * * * a Scheduled Airline during any portion of the first one way or round airline trip covered by such transportation ticket * * * in consequence of: (a) boarding, riding as a passenger in, alighting from or coming in contact with any aircraft operated on a regular or special or chartered flight by a Civilian Scheduled Airline maintaining regular, published schedules and licensed for interstate, intrastate or international transportation of passengers by the Governmental Authority having jurisdiction over Civil Aviation * *

Defendant on its part points to the fact that there was hanging on the wall at the right hand end of the counter where decedent picked up her ticket, a fairly large sign — approximately three feet by four feet — bearing the caption in large size capital letters:

“ NON SCHEDULED AIR CARRIERS AUTHORIZED TO CONDUCT BUSINESS IN THIS TERMINAL ”

and that there followed a list of ten carriers, among which was included on a separate line,

“ MIAMI AIRLINE ”.

In answer, the plaintiff has presented an affidavit from McManus, the representative of the tourist agency at the Consolidated Air Service counter, that the sign was on one wall of a waiting room near the counter and not at the counter. Plaintiff claims that the sign was on a wall of a public waiting room at an extreme end of the Newark Air Terminal, at an exit where persons leaving the airport obtain taxis. Plaintiff further claims that to get to the Consolidated counter, the decedent had to enter through the main entrance of the airport hundreds of feet away from the waiting room. There is, of course, no proof that decedent ever saw the sign.

Little, if anything, turns on the sign or what it said or where it was, for applicants for insurance are not affected with notice by reason of wall signs nor do they incorporate words or definitions from wall signs into their insurance contracts. It does serve the purpose of showing that the parties here are in disagreement on nearly everything except a few undisputed facts.

What contract of insurance, then, did the decedent purchase? She intended to buy coverage for her flight to Miami. The defendant says it did not intend to cover her on that flight. We all know that a contract of insurance, drawn by the insurer, must be read through the eyes of the average man on the street or the average housewife who purchases it. Neither of them is expected to carry the Civil Aeronautics Act or the Code of Federal Regulations when taking a plane. We have never departed from our statement in Kenyon v. Knights Templar & Masonic Mut. Aid Assn. (122 N. Y. 247, 254): “It may preliminarily be observed that, as a general rule, the construction of a written instrument is a question of law for the court to determine, but when the language employed is not free from ambiguity, or when it is equivocal and its interpretation depends upon the sense in which the words were used, in view of the subject to which they relate, the relation of the parties and the surrounding circumstances properly applicable to it, the intent of the parties becomes a matter of inquiry, and the interpretation of the language used by them is a mixed question of law and fact.” (See, also, Hartol Products Corp. v. Prudential Ins. Co., 290 N. Y. 44, 49; Rappaport v. Phil Gottlieb-Sattler, Inc., 280 App. Div. 424, affd. 305 N. Y. 594.) Was the decedent entitled to believe that she had purchased “ AIRLINE TRIP INSURANCE” through a policy “ LIMITED TO AIRCRAFT ACCIDENTS ”? It seems to us that a jury could find that when decedent purchased her policy on an application for “ AIRLINE TRIP INSURANCE ” from a machine having in prominent lighting those same three words, before obtaining her ticket from a counter in front of which the machine stood, she was covered on her flight, since the minds of the decedent and the company had met on that basis. In other words, since defendant put one of its automatic vending machines in front of the ticket counter of the Consolidated Air Service which, according to an affidavit submitted by defendant, “ was utilized by all non-scheduled airlines operating-out of the Newark Airport, as a processing point for their passengers, and before any passenger on a non-scheduled airline could receive his ticket he was required to present his exchange order ’ at said counter” we think a jury might find that the defendant was inviting those passengers to insure themselves by its “ AIRLINE TRIP INSURANCE ”.

Decedent was invited to purchase AIRLINE TRIP INSURANCE ”; she applied for “ AIRLINE TRIP INSURANCE ”; on the envelope to carry the policy to her daughter beneficiary was AIRLINE TRIP INSURANCE ” but defendant says that was not what decedent purchased. Shall the defendant, which wrote the policy, be permitted to say that “ AIRLINE TRIP INSURANCE ” “ means just what I choose it to mean ” and therefore means that a flight on a “ non-scheduled ’ ’ airline is not covered by the policy? Defendant concedes that the “ action is brought by the plaintiff to recover upon defendant’s Airline Trip Insurance policy ” but defendant contends that the policy did not cover the alleged loss of life of the said Sadie Bernstein because she lost her life in the crash of an aircraft which was not a flight operated by a Civilian Scheduled Airline.” (Emphasis by defendant.) That draws the line of construction very finely. Plaintiff claims that Miami Airline, Inc., maintained regular, published schedules of fares and schedules showing passenger mile rates and that it held itself out as maintaining regular schedules of flights and tickets were sold for stated hours of departure and that it was licensed by the Civil Aeronautics Board to carry passengers and freight with large aircraft in interstate, overseas and foreign air transportation. We think there is a question of fact presented. As we pointed out in Hartol Products Corp. v. Prudential Ins. Co. (supra), the burden in such a case as this is on the defendant to establish that the words and expressions used not only are susceptible of the construction sought by defendant but that it is the only construction which may fairly be placed on them. The defendant in its large illuminated lettering and in its application could have added proper, unambiguous words or a definition or could have avoided allowing its vending machine to be placed in front of the ticket counter “ utilized by all non-scheduled airlines operating out of the Newark Airport ”, thus removing the ambiguity or equivocal character of the invitation to insure, of the application for insurance and the contract of insurance itself. Perhaps we should point out here that even that might not have helped, for if decedent had engaged a lawyer to examine the Civil Aeronautics Act of 1938 as amended and the Code of Federal Regulations before purchasing her policy, she would have learned, and the defendant concedes, that the term “ Civilian Scheduled Airline ” cannot be found in them and there is no such terminology used. There is also no reference to nor mention of the words “ Scheduled Airline” in the Code of Federal Regulations. There is no definition of Scheduled Airline ” or of “ Non-scheduled Airline ” in the Civil Aeronautics Act of 1938 as amended.

No doubt it is advisable, if not indeed necessary, as a matter of business competition to sell insurance policies from automatic vending machines. It may save money to have a number of machines instead of a salesman. It may be wise because people hurrying to planes will not wait on a line to buy insurance. However, there must be a meeting of minds achieved between the applicant and the company through an application and signs and lettering, for while the applicant has a mind the machine has none and cannot answer questions. If the defendant had paid for a living salesman, the decedent would not have purchased the insurance if it did not cover her trip or she might have purchased it and changed her plane. So there must be additional care taken. While all this makes it more difficult for the insurance company, there is another side to the question. If the rule here was not made strict when machines are utilized it would mean that in this large terminal all persons who put money into the machines there and then, thinking they were insured, went off on one of the ten so-called “ non-scheduled air carriers,” would have no insurance for their beneficiaries and the company would be in receipt of contributions for which no service was ever rendered.

As we pointed out earlier, neither Special Term nor the Appellate Division made any finding. It is urged upon us that the term “ scheduled airline ” has gained such wide and general currency that it has become part of the speech of the average man even though it is not defined in any statute. That may or may not be so as to air-travelers but we do not know whether the decedent had ever been on a plane before. At any rate this court has no power to make findings here. Even the definition suggested by defendant in its brief seems to require more knowledge than the average layman has. According to defendant a “ Civilian Scheduled Airline ” is an “ air carrier which obtains a certificate of public convenience and necessity as provided in Section 401 of the Civil Aeronautics Act ”. It should be noted that the defense is not that a particular flight is not scheduled but that the airline is not a civilian scheduled one. The attempt of defendant to establish that the term Civilian Scheduled Airline ” has a clear and definite meaning has caused it to bring forward and present an enormous amount of proof extrinsic to the policy including a statute, regulations, newspaper and magazine articles, etc. By this mountain of work it seems to us that defendant has established that “ Civilian Scheduled Airline ’ ’ is not at all free from ambiguity and vagueness — if it were not so the contract of insurance itself would disclose within its four corners the intent of the parties in entering into it.

The order of the Appellate Division should be affirmed, with costs, the first question certified answered in the affirmative and the second question certified answered in the negative.

Fuld, J.

(dissenting). In Alice’s Wonderland, a word, said Humpty Dumpty, means just what I choose it to mean ”. But, in a jurisdiction more mundane, I do not perceive how we may say that the word “ scheduled ” can mean ‘ non-scheduled,” nor do I see how we may tell a jury that it can "say that an insurance policy which in express terms applies “ only ” to “ scheduled airlines ” can cover flights by an airline listed and self-described as non-scheduled ”.

Mrs. Sadie Bernstein had made arrangements through a travel agency in New York City to fly to Miami, Florida. At about 8:00 a.m. of December 16, 1951, just before picking up a transportation ticket of Miami Airline, Inc., she procured from a vending machine at the airport an insurance policy for $25,000. The plane took off some seven hours later, at three o’clock in the afternoon, and crashed a few minutes thereafter.

The policy, on its first page, in clear and legible type, states in so many words that it is limited to flights by “ Scheduled Airlines ’ ’; the provision reads, in part, as follows:

‘ ‘ This insurance shall apply only to such injuries sustained following the purchase by or for the Insured of a transportation ticket from * * * a Scheduled Airline during any portion of the first one way or round airline trip covered by such transportation ticket * * * between the Point of Departure and the Destination shown above, in consequence of: (a) boarding, riding as a passenger in, alighting from * * * any aircraft operated on a regular or special or chartered flight by a Civilian Scheduled Airline maintaining regular, published schedules and licensed for interstate, intrastate or international transportation of passengers by the Governmental Authority having jurisdiction over Civil Aviation ”. (Emphasis supplied.)

And, at the bottom of that same page, in larger letters, appears the further legend,

“ This Limited Policy Provides Payment for Loss of Life, Limb or Sight and Other Specified Losses by Accidental Bodily Injury While a Passenger on Civilian Scheduled Airlines ”.

A specimen policy, identical with that issued, was attached to the vending machine for inspection by any person desiring to obtain one of the policies. And, in addition, a large placard on the face of the machine — following the caption “ ‘ Domestic ’ Airline Trip Insurance ” — also gave notice that the insurance “ covers * * * flight * * * on any SCHEDULED AIRLINE.”

While it might have been sufficient to show that there are two separate and distinct classes of airlines, the ‘ scheduled ’ ’ and the nonscheduled ”, the insurer went far beyond that in this case. Recognizing, perhaps, the inconspicuousness of the obvious, defendant has marshalled a veritable mountain of material— contained in statute and regulations, in opinions and reports, in newspapers and magazines — to demonstrate that the term scheduled airline ” has gained a wide and general currency, and that it is a term of clear and precise meaning, which has become part and parcel of the ordinary person’s everyday vocabulary. Defined by any standard and from any point of view, and compressed into a sentence, it simply and solely denotes a common carrier permitted to operate, or to hold out to the public that it operates, one or more airplanes between designated points regularly, or with a reasonable degree of regularity, in accordance with a previously announced schedule.

Its origin is in the Civil Aeronautics Act and the pertinent regulations issued by the Civil Aeronautics Board. By subdivision (a) of section 401 of the Act, no citizen is authorized to engage in interstate, overseas or foreign air transportation, unless he first obtains a certificate of public convenience and necessity from the Board. (See 52 U. S. Stat. 987, U. S. Code, tit. 49, § 481, subd. [a].) The Board, however, is empowered to exempt from the requirement of certification any class of air carrier, including those “ not engaged in scheduled air transportation ” (52 U. S. Stat. 1005, U. S. Code, tit. 49, § 496, subd. [b]). And, pursuant to the authority thus granted, the Board in 1938 provided that “ every air carrier which engages solely in non-scheduled operations shall be exempt ” from the statute’s certification provisions (Code of Fed. Reg. [Cum. Supp., 1944], tit. 14, § 292.1; see, also, Code of Fed. Reg. [1952 Rev. ed.], tit. 14, § 291.1).

The controversies involving the nonscheduled airlines, the endeavor to provide greater safety to the public traveling those lines, are reflected in- the Board’s reports. Those matters do not, as such, concern us, and we refer to them only for the purpose of demonstrating that the distinction, between ‘ ‘ an air carrier engaged in scheduled air transportation ” and a carrier not so engaged, has been consistently maintained. In the investigations carried on over the years, the meaning of the term, “ scheduled airline ” or scheduled air carrier,” was crucial and vital. In its Investigation of Nonscheduled Air Services (6 C. A. B. 1049, 1054-1055) for instance, the Board declared: The scheduled air carrier operates pursuant to a scheme or plan under which, within the physical limitations of equipment and facilities, a definite quantum of service is constantly available to the traveling public, and is held out as such through course of conduct in maintaining reasonably regular service, filing of schedules and tariffs, advertisements, etc. * * * It therefore becomes apparent that ‘ nonscheduled ’ has a far more restrictive meaning than the mere absence of a published timetable.” And similar definitions are contained in an almost endless number of other opinions by the Board. (See, e.g., Large Irregular Carriers, Exemptions, supra, 11 C.A.B. 609, 612; Standard Airlines, Inc., et al., Exemption Request, 9 C.A.B. 583, 586; Page Airways, Inc., Investigations, 6 C.A.B. 1061; Trans-Marine Airlines, Inc., Investigation of Activities, 6 C.A.B. 1071; Matter of Noncertificated Operations of Trans-Caribbean Air Cargo Lines, Inc., Order Serial No. E-370, adopted March 14,1947.)

The courts, as well as Congress and the Civil Aeronautics Board, have invariably recognized that the “ scheduled airline ” is a definite, well-understood class of carrier. (See United States v. Eagle Star Ins. Co., 196 F. 2d 317, 318; S. S. W., Inc., v. Air Transport Assn. of America, 191 F. 2d 658, 660; Civil Aeronautics Bd. v. Modern Air Transport, 179 F. 2d 622; Putnam v. Air Transport Assn. of America, 112 F. Supp. 885, 886; Apgar Travel Agency v. International Air Trans. Assn., 107 F. Supp. 706; Pacific Northern Airlines v. Alaska Airlines, 80 F. Supp. 592.) The language in the Apgar case (supra, 107 F. Supp. 706, 708) is illustrative and illuminating: Plaintiff is an independent ticket agency serving, among others, non-scheduled (or irregular) air carriers. Defendants are four scheduled air carriers, two trade associations of companies engaged in scheduled air transportation ”. (Emphasis supplied.)

As a response to all this, plaintiff contends that, whatever meaning the term may have under the statute or under the regulations, that meaning, in the absence of an express incorporation of such material, does not bind one not chargeable with knowledge of administrative action. The point might be well taken, if to the so-called “ average ” man — upon whose knowledge plaintiff relies — the term had a meaning which was unclear or different from that announced by the regulatory agency or the courts. Words may, of course, have different significations to different people, at different times or under different circumstances, but that is not the case insofar as the term “ scheduled airline ” is concerned. The meaning given it by law has, as it were, passed into the public domain, where, in line with the current zest for abbreviation, it is usually referred to as a sked,” to differentiate it from its counterpart, the “nonsked.”

In point of fact, we might well have taken judicial notice of the term and its meaning, had the record not been as replete as it is with illustrations from the daily press and from popular magazines and books with large nationwide circulations. For instance, the president of a firm leasing planes to a nonscheduled carrier wrote in Fortune Magazine for August, 1949: “ It is now only a year ago that my air-freight line, California Eastern Airways, Inc., leased one of its DC-4 ships to a * large irregular ’ or non-scheduled carrier, popularly known as a nonsked. * * * Non-scheduled airlines use the same well-proved planes used by all airlines. But Douglas DC-3’s of the scheduled airlines carry twenty-one seats; those of the nonskeds, twenty-eight. Most of the DC-4’s of the scheduled lines contain forty-four seats; we now have sixty-seven in ours ” (pp. 51-52). A feature article in the March, 1951, issue of Cosmopolitan Magazine captioned, “ Don’t Fly the Unscheduled Air Lines! ”, takes for granted the classification of, and the distinction between, scheduled and nonscheduled carriers (p. 66). And in Harper’s Magazine for May, 1949, we find this discussion of scheduled airlines and nonscheduled flights (p. 67): “Including taxes, you would pay $113 for a nonscheduled flight from New York to Los Angeles, as against $181 on a scheduled airline. These carriers are non-scheduled in the sense that they are not permitted by the Civil Aeronautics Board to fly more than a limited number of trips between any two cities each month, and because they cannot, therefore, represent themselves to the public as running on regular time-tables.”

It is thus made evident that the general public encountered the term “ scheduled airline ” in the course of its normal and ordinary reading of newspapers and magazines, and the context in which the term appeared demonstrates that to the average person it had the same clear and definite meaning as it had for the federal agency which originally used it.

That being so, it follows, almost as a matter of course, that the fatal flight upon which plaintiff’s insured had embarked was not covered by the policy. The Letter of Registration, which Miami Airline had received from the Civil Aeronautics Board, classified and described it as a “ Non-certificated Irregular Air Carrier ” — the equivalent of a Nonscheduled Airline (see, e.g., S. S. W., Inc. v. Air Transport Assn. of America, supra, 191 F. 2d 658, 660; Apgar Travel Agency v. International Air Trans. Assn., supra, 107 F. Supp. 706, 708; Large Irregular Carriers, Exemptions, supra, 11 C. A. B. 609; see, also, Time Magazine, May 2, 1949, op. cit., p. 86) —and its status as such finds indisputable confirmation in Miami’s Tariff, which specifies, on its title page, that it “ contains local rates and rules * * * Applicable For Non-Scheduled [passenger and freight] Service ”. (Tariff No. 5, C. A. B. No. 5.)

Nor was Miami’s classification as a nonscheduled carrier kept a secret. Hanging on the wall at the right hand end of the counter where the insured had picked up her ticket was a fairly large sign — measuring some three feet by four feet — bearing

the caption in large capital letters:

“ NON SCHEDULED AIR CARRIERS AUTHORIZED TO CONDUCT BUSINESS IN THIS TERMINAL

££ MIAMI AIRLINE” — also in capital letters — was one of ten such carriers listed.

An insurance company is as free as any other party to limit and condition its liability as it sees fit, so long as there is no statutory provision or rule of public policy to the contrary. 1 ‘ A plain contract, clear and explicit in its terms,” we wrote in Weinberg & Holman, Inc., v. Providence Washington Ins. Co. (254 N. Y. 387, 390-391), “ is to be construed by the court. Equitable considerations will not allow an extension of the coverage beyond its fair intent and meaning in order to do raw equity and to obviate objections which might have been foreseen and guarded against, even though the contract to be construed is a policy of insurance.” A company, issuing a policy covering-only flights on a ££ scheduled airline ”, has not agreed to insure every sort of flight, and, if injury or death does occur in the course of a flight by a nonscheduled or irregular carrier, liability may not be foisted upon the insurer. Certainly, the policy’s coverage may not be changed or expanded on the theory, suggested by the court (opinion, p. 366), that, had Mrs. Bernstein dealt with a salesman instead of a machine, she ‘1 would not have purchased the insurance if it did not cover her trip ”. Nor may it be changed or expanded simply because the machine’s placard bore the legend Airline Trip Insurance ”, before noting that such insurance was limited to flights on scheduled airlines. And, just as obviously, a policy is not rendered unclear or ambiguous because the insured may not have understood the language used or its significance. The test for ambiguity is not subjective — which is but another way of stating that the issue is, not whether the insured knew, but whether she had reason to know, the content and purport of the contract she signed. (See, e.g., Tonkin v. California Ins. Co., 294 N. Y. 326; Hartol Products Corp. v. Prudential Ins. Co., 290 N. Y. 44; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Metzger v. Aetna Ins. Co., 227 N. Y. 411; see, also Restatement, Contracts, § 230.)

However, even if we were to assume, contrary to the fact, that the policy was ambiguous, the mere existence of an ambiguity would not suffice to establish plaintiff’s cause of action or justify denial of defendant’s motion for summary judgment. Even if, in other words, the policy term were susceptible of several interpretations, that could not assist the insured, or his beneficiary, unless it appeared that one of those interpretations would reasonably ‘ ‘ ‘ sustain his claim * * * and cover the loss ’ ”. (Houlihan v. Preferred Accident Ins. Co., 196 N. Y. 337, 340; see, also, Witherstine v. Employees’ Liability Assur. Corp., 235 N. Y. 168, 171 et seq.) Despite plaintiff’s repeated insistence that “ scheduled airline ” is a term of ambiguous import, it is significant that she does not even suggest what meaning could reasonably be given it other than the one here accorded. And the only item upon which she relies to come within that meaning is a list of Miami’s flights during the year 1951. This list, plaintiff asserts, is a “ schedule ” and, hence, the argument runs, Miami is a scheduled ” airline. Entirely overlooked is the circumstance that the list was prepared after the year had passed. Quite obviously, therefore, it constituted a record of past flights and not a schedule of current or future departures. In any event, the contention that such a list was evidence that Miami operated as a scheduled carrier ignores entirely the Board’s Letter of Registration, expressly classifying it as an Irregular Carrier” and the Board’s Tariff, explicitly describing its service as “ Non-Scheduled ”.

Differences of fact concerning items not material to the decision to be made may not, of course, be relied upon to defeat a motion for summary judgment. The present action is one solely to enforce the policy as written, and, accordingly, there is no need for a trial to resolve the dispute whether the large public sign listing Miami as a “ non scheduled ” carrier was seen by the insured; whether the placard on defendant’s vending machine made it clear that the policy was limited to scheduled airlines ” alone; or whether the machine was so close to the counter where the insured obtained her ticket as to create the impression that a policy covered a Miami Airline flight.

I would reverse the order appealed from and grant defendant’s motion for summary judgment.

Lewis, Ch. J., Dye and Fboessel, JJ., concur with Conway, J.; Ftjld, J., dissents in opinion in which Desmond, J., concurs; Van Voobhis, J., taking no part.

Order affirmed, etc.

      . Indeed, the Board has used the “scheduled” air operation as the starting point for almost the whole of its comprehensive system of economic and safety regulations. (See, e.g., Code of Fed. Reg. [1952 Rev. ed.], tit. 14, pt. 40, § 40.1, which, in its introduction, specifies that “the following regulations are prescribed for such certification of scheduled air carriers” and, ibid., pt. 61, entitled “ Scheduled Air Carrier Rules.”)

      . See, e.g., New York Times, July 8, 1951, p. 1, July 14, 1951, p. 12; New York Daily News, Jan. 4, 1949, p. 3; Coronet Magazine, May, 1951, p. 28; Cosmopolitan Magazine, March, 1951, p. 66; Fortune Magazine, Aug., 1949, p. 51; Harper’s Magazine, May, 1949, p. 64; Time Magazine, May 2, 1949, p. 86; see, also, 1 Collier’s Encyclopedia (1949), pp. 266-272, 279.

      . It is further revealing that, in one of the rules (No. 6) set forth in its Tariff, Miami declared that no stopover privileges shall be granted “because of nonscheduled character of our permit.” (Italics supplied.)

      . Not only was the specified limitation of coverage within defendant’s power, but it was a wholly reasonable one. Whether or not the nonskeds had a poorer safety record than the scheduled carriers, the fact is that they remained a greater risk from an insurance point of view. Since the nonskeds generally carried a larger number of passengers in each plane, & crash would probably impose a greater monetary loss upon the insurer.


author: Froessel, J.

text:
    The People of the State of New York, Respondent, v. Charles H. Omans, Appellant.
    Argued January 19, 1954;
    decided March 11, 1954.

      Murray M. Schwarts and Norman M. Pinsky for appellant.
    I. Section 524-a of the Code of Criminal Procedure vests power in all appellate courts including County Courts to permit omissions to be supplied or amendments made in a notice of appeal. (People v. Cornell, 186 Misc. 825; People v. Pettet, 143 Misc. 704; People v. Belcher, 299 N. Y. 321.) II. The court should find that the People have waived any right to demand an affidavit of errors.

      Prank Del Vecchio, District Attorney (Warren B. Murphy of counsel), for respondent.
    I. Section 751 of the Code of Criminal Procedure is the only method to appeal from a judgment or commitment rendered in a Court of Special Sessions. (People v. Cornell, 186 Misc. 825.) II. Sections 520 and 524-a of the Code of Criminal Procedure do not apply to appeals from Courts of Special Sessions outside of New York City. (People v. Pettet, 143 Misc. 704; People v. Belcher, 299 N. Y. 321.)
   Froessel, J.

After a trial before the Court of- Special Sessions of the Town of Manlius, Onondaga County, a Justice of the Peace found defendant guilty on May 7, 1953, of a violation of subdivision 1 of section 56 of the Vehicle and Traffic Law (speeding). On May 19, 1953, defendant served a notice of appeal on the Justice of the Peace, the District Attorney and the County Clerk of Onondaga County.

Prior to argument of the appeal before the County Court on June 17, 1953, the District Attorney appeared specially and moved to dismiss the appeal because of defendant’s failure to serve an affidavit of errors in compliance with section 751 of the Code of Criminal Procedure. That section, relating to the method of appeal from a Court of Special Sessions in a county outside the city of New York, reads: “An appeal must be taken within thirty days after the judgment or after the commitment, where the appeal is from the latter, by filing an affidavit with the magistrate or clerk of the court rendering the judgment or ordering the commitment, setting forth the alleged errors in the proceedings, conviction or commitment. A copy of the affidavit must be delivered within three days after the filing with the magistrate or clerk of the court, to the district attorney of the county in which the appeal is to be heard. Upon the filing of the affidavit the appeal is deemed tahen.” (Emphasis supplied.)

Counsel for defendant admitted in the County Court that there had been no compliance with section 751, but sought leave to cure the defect pursuant to section 524-a of the Code of Criminal Procedure, which provides: £ Where an appellant, seasonably and in good faith, serves a notice of appeal, either upon the clerk with whom the judgment-roll is filed or upon the district attorney of the county in which the judgment was rendered, but omits through mistake or inadvertence or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal or to stay the execution of the judgment appealed from; the court, in or to which the appeal is taken, upon proof by affidavit of the facts, may permit, in its discretion, the omission to be supplied, or an amendment to be made, upon such terms as justice requires.”

The County Court denied defendant’s application to supply the omitted affidavit of errors under section 524-a and dismissed the appeal. The narrow question presented to us, then, is whether a County Court has the power, pursuant to section 524-a, to relieve a defendant from his failure to comply with section 751 of the code. We think not.

Section 524-a is contained in Part IV of the code, which is entitled ££ Of the Proceedings in Criminal Actions Prosecuted

by Indictment Section 751, on the other hand, is found in Part V, which bears the caption ‘ Of Proceedings in Courts of Special Sessions and Police Courts ”, in which courts proceedings are usually based on a complaint or information, as in this case, rather than on an indictment. Part V provides for a complete system of procedure, independent of that provided for in Part IV, except as otherwise specially provided (People v. Giles, 152 N. Y. 136, 138). There is no provision in Part IV or V which may in anywise be construed as making section 524-a referable to the procedure prescribed in section 751 (see People v. Cornell, 186 Misc. 825).

An additional consideration leading to the conclusion that section 524-a is inapplicable to an appeal taken pursuant to section 751 is the fact that section 524-a expressly relates to the correction of errors in a case where an appeal is necessarily perfected by means of a notice of appeal. The latter section does not relate, expressly or inferentially, to an appeal required to be taken in any manner other than by notice of appeal. Section 751, however, requires a defendant to take his appeal from a Court of Special Sessions by the filing and service of an affidavit of errors and not by the filing and service of a notice of appeal. It is patent, therefore, that section 524-a can have no application to an appeal taken pursuant to section 751.

To hold otherwise would only create confusion where the statute is clear, namely, that appeals from Courts of Special Sessions must be taken within thirty days by the very simple method of filing an affidavit of errors. Here there was no compliance whatever with the applicable statute.

We find no merit in defendant’s argument that the People waived the right to demand an affidavit of errors (cf. People v. Belcher, 299 N. Y. 321).

The judgment of the County Court should be affirmed.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Van Vooehis, JJ., concur.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Anthony Joseph Ramistella, Appellant, et al., Defendants.
    Argued January 12, 1954;
    decided March 11, 1954.

      George E. Mulry for appellant.
    I. It was error to receive the alleged statement of defendant Micalizzi, without immediately, specifically, unequivocally, properly and adequately instructing the jury that as a matter of law it was not admissible against codefendant Ramistella. (People v. Romano, 279 N. Y. 392; People v. Robinson, 273 N. Y. 438; People v. Esposito, 224 N. Y. 370; People v. Marendi, 213 N. Y. 600; People v. Altman, 147 N. Y. 473; People v. Smith, 172 N. Y. 210; People v. Rosenberg, 276 App. Div. 547, 301 N. Y. 604; People v. Fisher, 249 N. Y. 419; People v. Ryan, 263 N. Y. 298; People v. Chin Sing, 242 N. Y. 419; People v. Rosenthal, 289 N. Y. 482; People v. Sobieskoda, 235 N. Y. 411; People v. Ferraro, 293 N. Y. 51.) II. The Judge’s charge covering the fifth count of the indictment was error. (People v. Baker, 96 N. Y. 340; People v. Cooper, 224 App. Div. 145; People v. Blanchard, 90 N. Y. 314; People v. Karp, 298 N. Y. 213; People v. Wreiden, 299 N. Y. 425.) III. It was error for the court to refuse to charge as requested by defense on guilty knowledge and intent. (People v. Lewis, 275 N. Y. 33; People v. Hayes, 210 App. Div. 549.) IV. The court in his charge on the fifth count instructed the jury appropriately if not sufficiently for the fourth count which had been dismissed. V. There was no evidence to support the larceny charged in the fifth count of the indictment. VI. It was error to curtail the court’s examination of the People’s witnesses. (People v. McGuire, 135 N. Y. 639; People v. Richardson, 222 N. Y. 103.) VII. The testimony of certain of the People’s witnesses on defendant’s motion should have been stricken from the record. (People v. Evans, 40 N. Y. 1.) VIII. The testimony of the witness who had testified differently in various judicial tribunals should be carefully and minutely scrutinized. (People v. Lashkowitz, 257 App. Div. 518.) IX. It was error for the court to refrain from reviewing in his charge the previous (inconsistent) sworn testimony of the People’s witnesses. (People v. Viscio, 241 App. Div. 499.) X. Defendant did not receive a fair and impartial trial. (People v. Robinson, 273 N. Y. 438; People v. Posner, 273 N. Y. 184.) XI. The court’s general attitude throughout the trial, particularly towards the defendant Ramistella and his attorney, entitles appellant to a reversal. (People v. Corey, 148 N. Y. 476.) XII. An inference cannot be based upon another inference. (People v. Razezicz, 206 N. Y. 249; People v. Portman, 215 App. Div. 282.) XIII. There was a fatal variance between the crimes charged and the proof offered. XIV. It was error to preclude questions on cross-examination of the so-called confidential number. XV. Defendant’s motions to dismiss the three counts of the indictment made at the close of the People’s case and renewed at the close of the entire case and the motions for a mistrial should have been granted. XVI. Defendant’s motion to set aside the verdict should have been granted. XVII. Defendant’s motion in arrest of judgment should have been granted. XVIII. The sentence of five to ten years’ imprisonment on the first and third counts of the indictment and five to ten years on the fifth count of the indictment, said sentences to run consecutively and not concurrently, was excessive especially in view of the state of the record of the trial. (People v. Miles, 173 App. Div. 179; People v. Naimark, 154 App. Div. 761.)

      T. Vincent Quinn, District Attorney (Benj. J. Jacobson of counsel), for respondent.
    I. Appellant was proven guilty beyond a reasonable doubt. (People v. Galbo, 218 N. Y. 283; People v. Spivak, 237 N. Y. 460; People v. Di Lorenzo, 301 N. Y. 374; People v. Lobel, 298 N. Y. 243.) II. Appellant received a fair and impartial trial, free of prejudicial error. (People v.
      Loomis, 178 N. Y. 400; People v. Rogan, 223 App. Div. 242; Vogel v. Gruaz, 110 U. S. 311; Lewis v. Roux Trucking Corp., 222 App. Div. 204; People v. Walsh, 262 N. Y. 140.)
   Froessel, J.

Defendant Ramistella appeals from his conviction on three counts of grand larceny, first degree. Between the afternoon of June 28 and 2:00 a.m. of June 29, 1949, a 1948 blue Cadillac convertible automobile owned by one Edith Sims was stolen from in front of her home in Forest Hills, Queens County. Two or three weeks later, said defendant attempted to sell a similar automobile to Larry Corsaro, a customer at the bakery shop of Ramistella’s sister, at Flushing, Queens County. Eventually, Agatha and Joseph La Perla, Corsaro’s sister and brother-in-law, purchased the car, paying therefor $3,400— $400 by way of a cash down payment, $800 cash shortly thereafter, paid in each case directly to Ramistella, and finally a check for $2,200 delivered to the codefendant, Micalizzi, in Ramistella’s presence.

Ramistella had represented to the La Perlas that his friend, John Morrison, owned the car. Morrison was later identified by the La Perlas as Micalizzi, who was jointly tried with Ramistella and convicted on the same three counts of grand larceny. Micalizzi, however, has not appealed. In due time, an investigation by the authorities indicated that the car sold to the La Perlas was the one stolen from Mrs. Sims. She identified it by its make and color, its upholstery, the seat covers, an oil spot on the light colored top, and a suction cup ring on the dashboard.

On this appeal, defendant assigns eighteen errors alleged to have been committed by the trial court. Among them are at least two which dictate a reversal here. In the first place, in the fact pattern of this case, we think it was error for the Trial Judge, over defendant’s objections and exceptions, to refuse to instruct the jury at the time Micalizzi’s confession was read into evidence, that said statement was not binding on Ramistella (People v. Marshall, 306 N. Y. 223). That statement, made two years after the theft, definitely implicated Ramistella and charged him with another crime. Here it may be noted that at the instant trial, Micalizzi’s confession and his oral statements to officials were apparently the only substantial evidence adduced which was not available at an earlier trial of Ramistella alone (Micalizzi not then having been apprehended), at which the jury-failed to agree on a verdict. Even with this additional evidence, the jury had the case ten hours before it reported agreement on a verdict.

Under all the circumstances, an appropriate instruction at the time the confession was read into evidence should have been given, and a refusal thereof was error which in our opinion seriously tended to prejudice Ramistella’s case. We do not think the admonition given in general terms in the formal charge to the jury was sufficient to protect Ramistella from that prejudice; the harmful effect of the statement operating in the minds of the jury for two full days made it difficult for them to heed the belated caution (People v. Carborano, 301 N. Y. 39; People v. Robinson, 273 N. Y. 438).

A second error occurred when the Trial Judge prevented cross-examination as to the location of the so-called confidential motor number ” on the stolen automobile after evidence of that number had been introduced by the People. We are told that the motor number of automobiles is stamped in two places, one in plain view, the other in a secret location known only to car manufacturers, certain representatives of auto theft insurance companies and the police auto squads in the larger cities. The prosecution offered evidence to show that the motor number on the Sims car when it was stolen was 486214163; that on the car sold by Ramistella to the La Perlas the visible number, which had been tampered with, read 486220032; and that the number in the secret location was 486214163 — the same as that of Mrs. Sims’ registration. This testimony, if believed, rather conclusively established that the car sold by Ramistella to the La Perlas was the stolen car in question. We have no way of knowing what weight the jury gave the other evidence identifying the car.

The argument of the People that this information must be kept secret in order to protect the public and to aid in the administration of penal justice is not persuasive. Even less compelling is the assertion that insurance companies will cease writing auto theft insurance if the confidential location is revealed. Neither the interests of the insurance companies nor the convenience of law enforcement agencies can justify depriving this accused of his constitutional right to cross-examine the prosecution’s witnesses on so important a link in the case against him.

The right to cross-examine is basic in our judicial system (Alford v. United States, 282 U. S. 687; People v. Becker, 210 N. Y. 274, 304-305; People v. Cole, 43 N. Y. 508, 512-513), and has been from earliest times (Matter of Friedel v. Board of Regents, 296 N. Y. 347, 352). Although in the last-cited case we held that once the right has been accorded, the extent of cross-examination rests largely in the discretion of the tribunal, whose exercise thereof is not reviewable unless abused ”, such a denial or limitation of cross-examination has been upheld only where it has related to collateral matters, or where the right itself has been abused (Matter of Friedel v. Board of Regents, supra, p. 352; People v. Braun, 158 N. Y. 558, 567-569; McGuire v. People, 48 How. Prac. 517; White v. McLean, 57 N. Y. 670, 671, opinion in 47 How. Prac. 193; Langley v. Wadsworth, 99 N. Y. 61, 63). Surely a Trial Judge cannot deprive a defendant of his constitutional right to inquire where, as here, the matter is directly relevant to the principal issues of the case against him (People v. Becker, supra; Alford v. United States, supra; People v. Cole, supra).

Even if the information in question were in any sense privileged, the People abandoned any such privilege by adducing on direct examination the discrepancy between the two motor numbers (United States v. Andolschek, 142 F. 2d 503, 506; United States v. Beekman, 155 F. 2d 580, 584; United States v. Keown, 19 F. Supp. 639; United States v. Coplon, 185 F. 2d 629, 638, certiorari denied 342 U. S. 920; see People v. Schainuck, 286 N. Y. 161; Gordon v. United States, 344 U. S. 414). One may not “ fill a gap in his own evidence by recourse to what he suppresses ” (United States v. Coplon, supra, p. 638; see, also, United States v. Reynolds, 345 U. S. 1, 12).

Of course the insurance companies and the police are free to use such confidential motor numbers in conducting their auto theft investigations. But in a court of justice they either must employ some other method of identifying the stolen ear — as indeed they could have confined themselves to in this case — or, if the confidential number is used as evidence against the defendant, they must permit their witnesses to be cross-examined with respect thereto, including its confidential location. A prosecution witness may not have immunity from defendant’s fundamental right of cross-examination upon so vital a matter as identification on the ground that his evidence is an impenetrable secret.

A third error, not discussed in the briefs, occurred when the Trial Judge permitted the jury to find defendant guilty on both count one and count three of the indictment, each of which related to the theft of the Sims auto. Count one charges defendant with grand larceny under the special automobile theft statute (Penal Law, § 1293-a). But an act is a crime under that section only if the circumstances do not constitute larceny under any other section of article 122 (§§ 1290-1313) of the Penal Law. Since on count three the jury found defendant guilty under section 1290 of the Penal Law of the so-called common-law larceny, it could not have consistently found him guilty also on count one under section 1293-a of the Penal Law. Even though Bamistella was given only one sentence on the two counts, his record would show he was convicted of two separate and distinct crimes, only one of which he could have committed.

Defendant’s objections with respect to the handling at the trial of the fifth count of the indictment, which charged defendant with stealing the cash and check from Joseph La Perla, are not well taken. Inasmuch as the fifth count alleges no false representations, and since it is undisputed that Joseph La Perla voluntarily parted with possession of the cash and check, section 1290-a of the Penal Law, as to “ Pleading and proof ”, would be applicable to this case (People v. Lobel, 298 N. Y. 243, 255). However, Bamistella’s failure to object when the evidence of his false representations was offered prevents his now claiming the benefit of that section (People v. Vanderborg, 277 App. Div. 795, affd. 301 N. Y. 750).

As to the other contentions urged upon us by defendant’s counsel, they are without substance or will no doubt be avoided on the new trial.

The judgments should be reversed and a new trial ordered.

Lewis, Oh. J., Conway, Desmond, Dye, Fuld and Van Voobhis, JJ., concur.

Judgments reversed, etc.