author: Van Voorhis, J.

text:
    In the Matter of the Claim of Rose Riehl, Respondent, against Town of Amherst — Department of Highways et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued October 20, 1954;
    decided December 31, 1954.

      Arthur J. Maloney and Percy R. Smith for appellants.
    The evidence failed to establish causal relationship between the employment and death. (Matter of Dworak v. Greenbaum Co., 261 App. Div. 1022, 287 N. Y. 555; Carr v. Donner Steel Co., 207 App. Div. 3; Matter of Andrews v. L. & S. Amusement Corp., 253 N. Y. 97; Matter of Fish v. Wickwire Spencer Steel Co., 258 N. Y. 539; Matter of Brady v. Holbrook, Cabot & Rollins Corp., 189 App. Div. 405; Matter of Bye v. State Ins. Fund, 279 App. Div. 1105; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65; Matter of McCormack v. National City Bank of N. Y., 303 N. Y. 5.)

      Nathaniel L. Goldstein, Attorney-General {Harry Pastor, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    Ample evidence supported the finding of the Workmen’s Compensation Board that decedent’s causally related cardiac condition was a contributory factor in his death. (Matter of Lucarelli v. General Ry. Signal Co., 276 App. Div. 799; Matter of Lessner v. 115-119 E. 90th St. Corp., 278 App. Div. 881; Matter of Chambers v. Universal Adv. Corp., 253 App. Div. 854.)
   Van Voorhis, J.

Death benefits under the Workmen’s Compensation Law have been awarded to the widow of Charles.Biehl, who died from cancer May 1,1951. No claim was made that his cancer was caused or aggravated by his employment, but the theory on which the award is based is that heart disease (chronic myocarditis) was a contributing cause of his death. For about ten years he had been receiving workmen’s compensation from the Town of Amherst or its insurance carrier, appellants herein, upon a finding of fact that this heart trouble resulted from falling from a ladder while engaged in trimming a tree as an employee of that town in 1941. No contest arises concerning the disability payments made to Mr. Biehl before he died. Appellants dispute the widow’s right to death benefits, however, upon the ground that the undisputed evidence indicates that Mr. Biehl died not from heart disease but from cancer, that there is no contention that his cancer arose out of his employment, and that the cancer progressed to its fatal conclusion without acceleration from the heart condition. It is thus appellants’ contention that the award is not sustained by substantial evidence.

The conclusion that chronic myocarditis was a contributing cause of death depends exclusively upon the death certificates signed by decedent’s attending physician, Dr. Frederick J. Stone, and upon his testimony. In the death certificate which Dr. Stone signed as a vital statistic for the Town of Amherst, it is stated that the disease or condition directly leading to death was ‘ ‘ Adeno-Oarcinoma of rectum: (Interval Between Onset & Death): 2 years.” Chronic myocarditis, with an onset interval of ten years, is listed as among the “ Antecedent Causes, Diseases or Conditions, if any, giving rise to the above cause ”. In the form of proof of death filed with the Workmen’s Compensation Board, Dr. Stone stated in answer to question number 11: “ State the direct cause of death: Adeno-Carcinoma of rectum.” (Italics supplied.) Question 13: “ Give contributory causes, if any”, was answered: “Chronic Myocarditis.” Dr. Stone’s theory of myocarditis as a contributing cause was condensed as follows in answer to question 10: “ Myocardial insufficiency as a result of the accident of 1941 which was a permanent defect and hastened the death of the patient.” These certificates were introduced as part of the testimony by Dr. Stone.

This opinion evidence needs to be analyzed against the background of the rest of Dr. Stone’s testimony in order to determine whether it rises to the level of substantial evidence. In Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works (304 N. Y. 65, 71), this court said that “ Under the test prescribed by our decisions for the judicial review of quasi-judicial determinations, the evidence supporting the findings of an administrative tribunal must be ‘ viewed in the light of the record as a whole ’ (Matter of McCormack v. National City Bank, supra, 303 N. Y. 5, 9), since ' Evidence which unexplained might be conclusive may lose all probative force when supplemented and explained by other testimony. ’ (Matter of Stork Restaurant v. Boland, supra, 282 N. Y. 256, 274.) ” A similar case to the present is Matter of Bye v. State Ins. Fund (279 App. Div. 1105) where a medical opinion was disregarded as speculative that death from cancer was hastened by an alleged industrial accident.

The rest of Dr. Stone’s testimony deprives his conclusion that death was hastened by myocarditis of any probative force which it otherwise might have. He conceded that there was no relation between Mr. Biehl’s cancer of the rectum and his heart condition and that cancer of the rectum, as it existed in his case, is ultimately fatal without regard to any other condition. Dr. Stone’s certificate to the Workmen’s Compensation Board shows that Mr. Biehl did not die from heart failure, but states that cancer was the “ direct cause ” of his demise. He testified: “ Q. You have no reason for saying the fact he had this myocarditis condition hastened his death a minute ? A. I cannot prove that, no. ” When it is borne in mind that death is conceded to have resulted from cancer and not from heart failure, that the cancer is claimed to have aggravated the heart condition but that there is no testimony that the heart condition aggravated the cancer, the basis for a conclusion that death was hastened by the heart condition is eliminated. Dr. Stone’s only explanation of his stated conclusion that the myocarditis was a contributing cause is that the man’s cancer put a strain upon an already weakened heart. If he had died from a heart attack, then Dr. Stone’s version of the facts might have supported a conclusion that cancer had accelerated his death. But since the precipitating cause of death was cancer and not heart trouble, and there is no claim that myocarditis caused or contributed to the cancer, it does not help claimant’s case to show that his heart was further weakened by cancer more than it would to show that any other vital organ had deteriorated. Perhaps his heart would not have held out much longer; but, impaired or not, it held out long enough so that he died as a' direct result of cancer instead of from heart disease — which is what counts here.

After discussing the added strain which this attending physician testified that decedent’s cancer caused to his heart, this witness testified: Q. But there ivas nothing in the man’s condition that hastened the carcinoma of the rectum, was there? A. No. Q. That developed to an ultimate fatal conclusion? A. That is right.” (Italics supplied.)

The clear purport of this testimony is that the strain placed upon his system by the cancer might have led to an acute heart failure but did not, and that cancer might have injured a heart which was already damaged. That might have furnished a basis for holding that if the man had died from heart disease, cancer would have been a contributing cause, but it has no tendency to establish that the heart condition was a contributing cause of his death from cancer.

The conclusion contained in Dr. Stone’s certificates of death has no greater probative force than the basis on which his testimony shows that it is founded. Expert opinion evidence lacks probative force where the conclusions are contingent, speculative, or merely possible ” (Rapallo, J., in Strohm v. New York, Lake Erie & Western R. R. Co., 96 N. Y. 305, 306; Briggs v. New York Central & H. R. R. R. Co., 177 N. Y. 59).

The supposedly ‘ ‘ substantial evidence ’ ’ which has heretofore upheld this award, is simply the statement in Dr. Stone’s attending physician’s reports that myocarditis accelerated his death from cancer, coupled with the explanation of this conclusion in his testimony. The conclusion contained in his certificates of death has to be analyzed and limited in the light of Dr. Stone’s testimony. It has no greater probative force than the grounds on which his testimony shows that it is based. As was said in Matter of McCormack v. National City Bank (303 N. Y. 5, 9): there can be no doubt whatsoever that the doctor’s surmise of what might have been, may not be regarded as substantial ”.

In this instance, even if we were to assume that death had been hastened in some unexplained manner by an aggravation of the heart condition by cancer, Dr. Stone’s conclusion would still be speculative upon the point inasmuch as he found himself unable to form an opinion with reasonable certainty concerning any minimum period of time whereby death was accelerated. His statement that he is unable to prove that myocarditis hastened his death by a minute is equivalent to stating that he could not express an opinion with reasonable certainty that death was hastened due to this cause. That reduces his opinion that there was some acceleration to speculation.

The cases of Matter of Lucarelli v. General Ry. Signal Co. (276 App. Div. 799); Matter of Lessner v. 115-119 E. 90th St. Corp. (278 App. Div. 881), and Matter of Chambers v. Universal Adv. Corp. (253 App. Div. 854), cited by respondent, all involved situations where death was accelerated by industrial accidents or occupational diseases.

The subject of criminal and civil liability for accelerating death has undergone an extensive and interesting history in the courts. We do not pause to discuss the criminal aspect that is analyzed in People v. Kane (213 N. Y. 260) except to remark that it is not helpful to a solution of the instant question to cite language from opinions in criminal cases saying that it is murder deliberately to kill a man, notwithstanding that he is already marked for early death by disease. The more nearly applicable precedents concern actions for causing the death of another by negligence. In McCahill v. New York Transp. Co. (201 N. Y. 221) cited at the Appellate Division, the plaintiff’s intestate died from delirium tremens two days after being struck by defendant’s taxicab. There was medical testimony, not inherently improbable, that the taxicab accident was the precipitating cause of delirium tremens. If that were true, he would not have died when he did except for the taxicab accident. Recovery of civil damages was allowed, measured by the pecuniary value of the decedent’s life to his statutory beneficiaries during the period which, in the judgment of the jury, would have elapsed before death would have caught up with him in any event.

In negligence cases our courts have been loathe to fasten liability for death from accident upon defendants in cases where it has been fairly evident that death has resulted entirely from natural causes, viz., Seifter v. Brooklyn Heights R. R. Co. (169 N. Y. 254); Weber v. Third Ave. Ry. Co. (12 App. Div. 512); Koch v. Fox (71 App. Div. 288); Koch v. Zimmermann (85 App. Div. 370); McQuade v. Metropolitan St. Ry. Co. (84 App. Div. 637); Morhard v. Richmond Light & R. R. Co. (111 App. Div. 353); Levy v. Mott Iron Works (143 App. Div. 7); Fitzgerald v. Colt-Stewart Motor Co. (231 App. Div. 176); Loes v. Poll & Co. (242 App. Div. 729); Kwiatkowski v. John Lowry, Inc. (248 App. Div. 459). There is no reason on account of which courts should be more astute to do so in workmen’s compensation where recovery cannot be reduced, as awards of damages are required to be in negligence actions, by the shortening of the normal life span due to the incidence of some fatal disease not involving liability.

The order appealed from should be reversed, the award of the Workmen’s Compensation Board annulled and the claim dismissed, without costs.

Lewis, Ch. J., Desmond, Fuld and Fbobssel, JJ., concur with Van Voobhis, J.; Conway and Dye, JJ., dissent and vote to affirm upon the opinion of Halpeen, J., in the Appellate Division.

Order reversed, etc.


source: Caselaw Access Project

author: Fuld, J. Froessel, J.

license: Public Domain

text:
    Frances Gaines, Appellant, v. Owen P. Jacobsen, Respondent.
    Argued November 29, 1954;
    decided December 31, 1954.

      Ira M. Millstein, Gabriel Kaslow, Edward G. Wallace and Jacob F. Baskin for appellant.
    I. The law of the State of Connecticut, in the absence of proof to the contrary, is the same as that of the State of New York. (International Text Book Co. v. Connelly, 206 N. Y. 188; Davis v. Davis, 119 Conn. 194; Thompson v. Thompson, 14 Conn. S. 511.) II. The decision of this court in Sleicher v. Sleicher (251 N. Y. 366) is controlling and holds in effect that the words “ until she shall remarry ” used in a separation agreement require a valid remarriage for termination of husband’s duty to make payments for wife’s support and maintenance. (Tafall v. Tafall, 264 App. Div. 542.)

      Barent Ten Eyck for respondent.
    I. The Sleicher case does not support plaintiff’s position. II. New York law, apart from the Sleicher case, does not support plaintiff’s position but affirmatively indicates that it is not well taken. (Kirkbride v. Van Note, 275 N. Y. 244; Pomerance v. Pomerance, 187 Misc. 20; Williams v. State of New York, 175 Misc. 972; Dorn v. Dorn, 282 App. Div. 597; Coats v. Coats, 160 Cal. 671.) III. Connecticut law does not support plaintiff’s position. (Erwin v. English, 61 Conn. 502; Town of Roxbury v. Town of Bridgewater, 85 Conn. 196; Sutton v. Leib, 342 U. S. 402; O’Brien v. O’Brien, 3 Conn. S. 1; Cary v. Cary, 112 Conn. 256; Stapleberg v. Stapleberg, 77 Conn. 31.)
   Fuld, J.

The question in this case is whether, under a separation agreement requiring annual payments for plaintiff’s support “ until she shall remarry ”, defendant husband’s obligation to make the payments terminates permanently with the wife’s “ remarriage ” or is revived by a later annulment of that “ remarriage.” The trial court, deciding that the agreement “ contemplated a valid marriage ”, held that defendant’s obligation was revived as of the date the second “ marriage ” was annulled. On appeal, the Appellate Division reversed, finding that plaintiff did remarry, within the meaning of the agreement, and that defendant’s obligations were thereupon permanently extinguished, despite the later annulment.

Plaintiff and defendant, married in 1927, separated and entered into a separation agreement in March of 1944. The agreement provided, inter alia, that defendant was to pay to plaintiff $1,668 a year for her support and maintenance, during her life “ or until she shall remarry it also required that defendant maintain a $10,000 insurance policy on his life for the benefit of plaintiff, “ unless and until * * * [she] shall remarry.” The agreement, it was specified, was to survive any decree of divorce and all questions relating to its “ validity, interpretation and enforcement ” were to “be construed and determined in accordance with the law of the State of Connecticut.”

Two months later, plaintiff wife was granted an absolute divorce from defendant in Nevada, the decree providing, with respect to support and maintenance, that the parties be left to their agreement. Defendant husband remarried in August of 1944 and plaintiff married one George W. Barragan five years later. Upon her marriage to the latter, plaintiff advised defendant that she “had been married” and that he could “ quit making * * * the payments ”.

Barragan had obtained a divorce in Nevada from his former wife Bosalind prior to his marriage to plaintiff. Soon after that marriage, however, Bosalind instituted suit for divorce against Barragan in this state on grounds of adultery. The New York court, finding that there was no prior decree of divorce between them “ by any court having jurisdiction to grant the same,” awarded Bosalind an absolute divorce. With this turn of events, plaintiff left Barragan and brought suit in this state for an annulment on the ground that he was married at the time of his alleged marriage to her. The action resulted in a judgment of annulment, “ declaring the alleged marriage * * * a nullity”.

Plaintiff made no request for alimony in the annulment action, having been advised by her attorney that Barragan was so burdened with debts and alimony payments to Bosalind that the court would make no award against him. Neither did she make any claim that defendant resume payments under the agreement until about a year and a half later, feeling, as she put it, that “ I got myself in trouble and I would take care of myself.” In February of 1953, however, she commenced this present action against defendant (1) to recover support and maintenance payments allegedly in arrears under the separation agreement and (2) to require defendant to provide and maintain the $10,000 insurance policy for her benefit.

Although the agreement stipulates that Connecticut law should govern its construction and effect, the Appellate Division, concluding that the question posed had never arisen in the courts of that state, rested its determination on New York law. In so doing, it was correct. In the absence of proof to the contrary, we must assume that the law of Connecticut is the same as the law of New York (see International Text Book Co. v. Connelly, 206 N. Y. 188, 201), and, indeed, both parties, as well as the Appellate Division, agree that the major question in this case is whether our decision in Sleicher v. Sleicher (251 N. Y. 366) is controlling.

In the Sleicher case, a separation agreement, incorporated in a Nevada decree of divorce, provided for payments to the wife “so long as she remains unmarried ”; the wife’s subsequent remarriage was later annulled because of the second husband’s insanity. The court held that the first husband’s obligation to make the payments was not terminated by the invalid remarriage, resting the decision on the doctrine of “ relation ” back or “ rescission from the beginning ’’ — that is, as the court put it, that an ‘‘ annulment when decreed, puts an end to [the marriage] from the beginning * * *. It is not dissolved as upon divorce. It is effaced as if it had never been ” (251 N. Y., at p. 369). Accordingly, the husband was required to pay all installments due from the date of the annulment. The court, however, rejected the wife’s claim that she was also entitled to the payments which fell due during the period of the second marriage and before its annulment. In that connection, it observed that the ‘ doctrine of relation is a fiction of law adopted * * * solely for the purposes of justice ’ ” and that it is “ not * * * without limits, prescribed by policy and justice ”, which “ have their typical application to the rights and duties of a stranger ” (p. 369). Accordingly, since the “ purpose of an award of alimony is support for a divorced wife not otherwise supported ” (p. 371), and since the wife was supported by her second husband until their marriage was annulled, the court denied recovery from her first husband for the period during which the second marriage continued.

At the time of the Sleieher decision, it was impossible for a wife to obtain alimony or other support upon annulment of a marriage; it followed inexorably, from the theory that an annulled marriage never existed, that such a marriage created no subsequent duty of support. (See Jones v. Brinsmade, 183 N. Y. 258.) To have held otherwise than the court did in Sleicher would, therefore, have deprived the wife in that case of any source of support whatsoever. However, since that time, the legislature has enacted section 1140-a of the Civil Practice Act, which provides that

When an action is brought to annul a marriage or to declare the nullity of a void marriage, the court may give such direction for support of the wife by the husband as justice requires ”.

This new provision, respondent urges, by removing the primary and underlying motivation for the Sleicher decision, distinguishes that case from the one before us and justifies us in reaching a different conclusion. Appellant, on the other hand, contends that there is no basis for distinguishing Sleicher, and that it is dispositive of this appeal.

While resolution of the dispute may not be easy, it is our opinion that the new enactment, after the date of the Sleicher decision, alters the situation before us so materially that it calls for a different result in this case.

Since the function of alimony payments is to provide support for a wife not otherwise supported, the reason for such payments fails when the wife acquires a new source of support by remarrying (cf. Civ. Prac. Act, § 1172-c). And by a ceremonial marriage she receives the right to support — even though the circumstances are such that grounds for annulment exist — for the entire period that the parties live together as husband and wife, unless and until there is an actual judicial declaration of annulment. (See Sleicher v. Sleicher, supra, 251 N. Y. 366, 370; Bostick v. State, 1 Ala. App. 255; State v. Loyacano, 135 La. 945.)

The subsequent fortunes of the remarriage, and whether or no it is later terminated, are in no way material to the agreement; the husband’s obligations are by its terms to continue only until she remarries, and there is nothing in the agreement which can serve as a basis for subsequently reviving those obligations. No one contends that they would be revived if the remarriage ended in divorce (see Nelson v. Nelson, 282 Mo. 412, 418; Brandt v. Brandt, 40 Ore. 477), and it is difficult to see any reason for a different result when it ends in annulment. It is certainly unlikely that the parties intended the result to turn upon whether an unsuccessful remarriage is deemed in law void — as is the one in this case (Domestic Delations Law, § 6) — or voidable (Domestic Delations Law, § 7) or valid, until dissolved by a decree of divorce. Dather, the understanding must have been that, upon the wife’s remarriage, the husband could regard himself as free of the duty to support her. He could then assume new obligations — he could himself remarry, if he were of a mind to, but his means limited — without remaining forever subject to the possibility that his first wife’s remarriage would be annulled and the burden of supporting her shifted back to him. And the wife, too, must have understood that by remarrying she abandoned her rights to support under the agreement, for better or for worse, in favor of whatever support would be furnished her by her second mate.

These arguments were, of course, available to the husband at the time of the Sleicher case, but, as already noted, the fact situation was materially altered in the interim. In 1929, when Sleicher was decided, there was no section 1140-a, with the consequence that, if the remarriage ended in annulment rather than divorce, no alimony could have been awarded against the second spouse. If the court had determined that the wife had lost her rights under the agreement as well, she would have had no source of support whatsoever. To avoid this harsh result, the court had recourse to the doctrine that annulment relates back to destroy the marriage from the beginning— fully recognizing that it was “ ‘ a fiction of law adopted * * * solely for the purposes of justice ’ ” — to hold that there was no ‘ ‘ remarriage ’ ’ under the terms of the agreement. At the same time, however, in order to deny recovery for the period that the second marriage continued, the court acknowledged that the doctrine was not * * * without limits, prescribed by policy and justice ” (251 N. Y., at p. 369).

Today, through the operation of section 1140-a, the wife can receive support from the husband of the annulled marriage, where justice requires,” and there is no more reason to revive the obligation of the first husband — a stranger to the annulment — than there would be if the remarriage were terminated by divorce. The ‘ purposes of justice ’ ’ now dictate that his discharge, effected when the wife goes through a second marriage, be permanent, that he be not required to stand perpetually ready to resume her support should the remarriage some day be annulled.' The interests of justice require, too, that, as .between successive husbands, the wife look to the last one for support, and, certainly, that she be given neither two sources of support nor the ability to choose between her first and second husbands for the more profitable. The court put it most aptly in Sleicher, when it wrote, “ To say that the judgment of annulment has put the defendant in default through the fiction of relation is to say that the plaintiff shall have support or an equivalent from each of two men during the same period of time, and this by force of a fiction subservient to justice ” (251 N. Y., at p. 370).

Not only does the practical justification for the Sleicher decision fall with the enactment of section 1140-a, but its doctrinal basis becomes extremely questionable as well. The fiction that annulment effaces a marriage “as if it had never been ” is sometimes given effect and sometimes ignored, as the “ purposes of justice ” are deemed to require. The courts and the legislature have, accordingly, attached to annulled marriages, for certain purposes, the same significance that a valid marriage would have, when a more desirable result is thereby achieved. Thus, although a distinction is sometimes made between void and voidable marriages, the annulled marriage has been given sufficient vitality to constitute valid consideration for a gift in contemplation of the marriage (see American Sur. Co. v. Conner, 251 N. Y. 1); to make a remarriage by one of the parties during its continuance bigamous (see McCullen v. McCullen, 162 App. Div. 599); and, by statute in this state, to legitimatize any children born of the union (Civ. Prac. Act, § 1135).

By writing section 1140-a into the law, the legislature has chosen, without regard to whether the marriage is void or voidable, to attach to annulled marriages sufficient validity and significance to support an award of alimony, in other words, to serve, the same as any valid marriage would, as the foundation of a continuing duty to support the wife after the marriage is terminated. (See Johnson v. Johnson, 295 N. Y. 477.) It has declared, in effect, that, for the purpose of sustaining a right to support after annulment, the annulled marriage is no longer to be deemed a nullity, “ effaced as if it had never been.” In so doing, the legislature has destroyed the very foundation of the Sleicher decision. To give an annulled marriage this effect, and yet stamp it a nullity for the purpose of terminating the first husband’s duty of support under the agreement, would fly in the face of logic and consistence.

It is true, as plaintiff points out, that an affirmance places her in a less than happy position because Barragan has died; she can no longer ask the court in the annulment action to amend the decree and exercise its discretion, under section 1140-a, to provide for alimony payments from him. Such a consideration cannot, however, affect our decision. In the ordinary case, it is far more likely that justice will be served by not disturbing the first husband’s discharge and by leaving the wife to seek support, from her second husband, in the annulment action. That the second husband has died is unfortunate, but plaintiff’s plight is no different from that of any woman whose source of support has come to an end through death. Having remarried, she chose to abandon her right to support from defendant in favor of Harragan. Plaintiff could not retain both husbands as sources of support; having made her choice, she is bound by it, although subsequent events prove it to have been an improvident one.

The judgment appealed from should be affirmed.

Froessel, J.

(dissenting). I dissent and vote to reverse upon the ground that the words " until she shall remarry ”, appearing in the separation agreement, contemplate a valid remarriage and do not mean until she shall remarry ” unlawfully. This marriage was absolutely void and was so declared in the annulment decree.

Lewis, Ch. J., Conway, Desmond, Dye and Van Voorhis, JJ., concur with Fuld, J.; Froessel, J., dissents in a memorandum.

Judgment affirmed.

      . We are advised of the fact — not in the record — that Harragan died in December, 1953, following the trial of the present action.


author: Fboessel, J.

text:
    Anna Sandak, an Infant, by Michael Sandak, Her Guardian ad Litem, Appellant, v. Tuxedo Union School District No. 3, Town of Tuxedo, Defendant, and Marion White et al., Respondents.
    Argued November 16, 1954;
    decided December 31, 1954.

      George F. Roesch for appellant.
    I. Plaintiff did comply with the literal wording of the statute, and her second cause of action should be upheld. (Martinez v. Modica, 191 Misc. 836; Derlicka v. Leo, 281 N. Y. 266; Bernardine v. City of New York, 268 App. Div. 444; Schmid v. Werner, 188 Misc. 718.) II. Special Term erroneously construed the application of section 3813 of the Education Law.

      William T. Gallagher and Donald S. Wilson for respondents.
    The cause of action was properly dismissed. (Schmid v. Werner, 188 Misc. 718; Kosiba v. City of Syracuse, 287 N. Y. 283; Bernardine v. City of New York, 268 App. Div. 444, 294 N. Y. 361; Matter of Polk v. City of New York, 188 Misc. 727; Metcalf v. Central School Dist. No. 1, 280 App. Div. 875; Derlicka v. Leo, 281 N. Y. 266.)
   Fboessel, J.

Since the second cause of action in the complaint herein has been dismissed for legal insufficiency, we must assume the following facts to be true. Due to the negligence of defendant teachers, White and Mottola, plaintiff, a fifteen-year-old eighth grade pupil, was struck on the side of her face by a basketball as she was entering upon the gymnasium floor of a school operated by defendant school district. The accident occurred in the course of physical educational activities, when a girls’ basketball class was allowed upon the gymnasium floor while a boys’ game was still in progress. As a result of the blow, plaintiff suffered severe injuries to her spine for which she brought suit through her guardian ad litem.

Her complaint alleges two causes of action. The first is against the school district. This cause of action has not been dismissed and is not now before us. The second is against the two teachers who, plaintiff alleges, were in charge of the gymnasium at the time of the accident. It is only this second cause of action with which we are presently concerned.

Defendant teachers moved to dismiss the second cause of action against them for insufficiency on the ground that it fails to allege that plaintiff had served upon them the notice of claim which is required by subdivision 2 of section 3813 of the Education Law and section 50-e of the General Municipal Law. In her first cause of action (against the school district), plaintiff alleged that a notice of claim was duly served on defendant school district under the provisions of section 50-e of the General Municipal Law. Although no such allegation was included in the second cause of action, the teachers have conceded that the omission was inadvertent, and they join with plaintiff in requesting us to deem the complaint amended accordingly. We have therefore assumed, as did Special Term, that the allegations of paragraphs Tenth and Eleventh of the complaint are repeated in the second cause of action. Plaintiff concedes * ' that no copy of said notice of claim was served upon either of the individual defendant teachers themselves personally ”.

Thus the narrow issue presented is whether, in an action against a school district and its teachers for negligence in the performance of their duty, a plaintiff has sufficiently complied with subdivision 2 of section 3813 of the Education Law and section 50-e of the General Municipal Law, by serving a notice of claim on the school district only, and not on the teachers individually. Special Term, expressing the opinion that the Education Law required a notice of claim to be served both on the teachers and on the school district, dismissed the second cause of action in the complaint. The Appellate Division affirmed without opinion.

Until 1950, a teacher was subject to suit for his negligence just as any other individual. An injured student, for example, had a common-law right to bring suit against him at any time within the applicable statute of limitations period. No statute limited this right by requiring that the plaintiff first serve the teacher, or anyone else, with a notice of claim. By an earlier statute, however, if a plaintiff desired to sue the school district; he must first duly and timely serve a notice of claim upon it (L. 1938, ch. 208). Nevertheless, if the suit was against the teacher alone, no such notice was required, even though the school district might have to save the teacher harmless from liability for negligence (Education Law, § 3023). This common-law right of plaintiff — to sue a teacher without first performing some condition precedent — could not, of course, be limited or restricted except by a clear legislative intent to do so.

In 1950, the Legislature, by chapter 762 of the Laws of 1950 (§ 45), amended subdivision 2 of section 3813 of the Education Law so that it read, so far as pertinent here: “no action * * * founded upon tort shall be prosecuted or maintained against * * * any teacher * * * unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law ”. Thus plaintiff here cannot maintain her action unless she shall have made and served a notice of claim. But upon whom must the notice be served? the teacher? the school district? or both? The Education Law does not specify; it merely states that “ a notice of claim shall have been made and served ’ ’, as aforesaid (emphasis supplied). This language was satisfied by plaintiff when she served her notice of claim on the school district.

It is true that subdivision 3 of section 50-e of the General Municipal Law states that “ The notice shall be served on the party against whom the claim is made ”; but that subdivision then continues: “by delivering the notice, or a copy thereof, personally, or by registered mail, to the person, officer, agent, clerk or employee, designated by law as a person to whom a summons in an action in the supreme court issued against such party may be delivered ”. It seems to us that this section, in referring to service on “ the person, officer, agent, clerk or employee ” who may accept service, contemplates that service shall be on the public corporation alone. It says nothing about service on the negligent employee or appointee of a public corporation. Historically, the notice of claim concept has always applied only to public corporations. In any event, however, even were the statute deemed ambiguous on this point, being in derogation of plaintiff’s common-law rights, it should be construed in her favor.

When the Legislature has desired to require that the notice of claim be served on both the public corporation and its negligent employee or appointee, it has clearly and explicitly so stated (see L. 1936, ch. 323, which added §§ 50-b and 50-c to General Municipal Law; see, also, Kosiba v. City of Syracuse, 287 N. Y. 283, which construes this 1936 statute). The Legislature could have used similar language in the statute now before us, but it did not. From its failure so to do, we infer that it never intended to require such double service, satisfied with the requirement that the teacher within ten days ” deliver the summons, complaint and other papers served to the board of education (§ 3023, last sentence).

Moreover, as above noted, the school district has a duty to indemnify each of its teachers for any financial loss arising out of a claim or judgment by reason of any negligence, provided that at the time of the accident the teacher was “ acting in the discharge of his duties within the scope of his employment and/or under the direction of said board of education, trustee [or] trustees ”. (Education Law, § 3023.) With identical language, the Legislature described in what actions against a teacher a notice of claim is necessary. (Education Law, § 3813, subd. 2.) Thus our lawmakers have required such notice, only in those cases where a teacher is entitled to indemnification from the school district. If the school district will not have to indemnify, no notice is needed. In this way the Legislature has acknowledged what is apparent to everyone — that for all practical purposes, even though the suit in name be against the teacher, it is the school district which is the real party against whom the claim is made ”.

Kosiba v. City of Syracuse (supra) and Derlicka v. Leo (281 N. Y. 266) cited by defendants, are both clearly distinguishable. A different statute was involved in the Kosiba case; it was section 50-c of the General Municipal Law as it read prior to its amendment in 1945. As above noted, that statute, unlike the one now under consideration, expressly required service of a notice of claim on the negligent policeman as well as upon the city: “ no action * * * shall be maintained against said municipality and appointee ” unless notice is filed with “ said municipality and with the appointee ” (L. 1936, ch. 323; emphasis supplied). We had the identical situation in Bernardine v. City of New York (268 App. Div. 444, affd. 294 N. Y. 361).

As for the Derlicka case (supra), plaintiff’s complaint was dismissed because she had failed to do what plaintiff here has done — i.e., served a notice of claim on the municipal corporation. Consequently, in that case we never reached the question which is now presented — whether the notice of claim must be served on the negligent employee or appointee as well as on the municipal corporation.

When we look to the history and purpose behind our statutes requiring that a notice of claim be served on a public corporation as a condition precedent to instituting suit, almost inevitable is the conclusion that in this case plaintiff’s service on the school district was all that the Legislature intended to require, and was thus sufficient. We have held that a notice statute such as this should be “ reasonably construed ” in the light of its underlying purpose. “ It is not a trap for the unwary or the ignorant ” (Sweeney v. City of New York, 225 N. Y. 271, 273).

As to the purpose of such a statute, we stated in Teresta v. City of New York (304 N. Y. 440, 443): “ The prime, if not the sole, objective of the notice requirements of such a statute is to assure the city an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. (See, e.g., Sweeney v. City of New York, 225 N. Y. 271, 273 [and other cases].) ” (See, also, Matter of Brown v. Board of Trustees of Town of Hamptonburg School Dist., 303 N. Y. 484, 490, and Winbush v. City of Mount Vernon, 306 N. Y. 327, 333.) In the 1944 Report of the Judicial Council, recommending adoption of section 50-e of the General Municipal Law, that body commented (Tenth Annual Report of N. Y. Judicial Council, 1944, p. 265):

“ The requirement of notice is one of the safeguards devised by the law to protect municipalities against fraudulent and stale claims for injuries to person and property. It is designed to afford the municipality opportunity to make an early investigation of the claim while the facts surrounding the alleged claim are still ‘ fresh ’. On the other hand, ' these provisions [notice statutes] were not intended as a trap for the unwary and the ignorant. ’

An examination of the decisional law, however, indicates that far too often technicalities in this field have prevented the disposition of honest claims on their merits.

“ The recommended new statute [is] designed to remedy these and other defects

In the instant case, plaintiff gave due notice to the school district, thereby providing it with ample opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim ”. As for the teachers, who now claim they too should have been notified of the claim, they were present at the time the accident occurred, and had first-hand knowledge of the circumstances. Unlike a municipal corporation, the teachers needed no opportunity to investigate the claim, and consequently had no need for advance notice thereof. All they were required to do was to deliver the summons and complaint to the school district. They would not have to pay any judgment against them.

Thus, by serving her notice of claim on the school district, not only did plaintiff fully comply with all that the statutory language unambiguously requires, but she also has satisfied the prime, if not the sole, objective ” of the notice statute. Plaintiff’s complaint, deemed amended as the parties have requested, is therefore sufficient, and should not have been dismissed.

The judgment of the Appellate Division and that of Special Term should be reversed, with costs in all courts, and the matter remitted for further proceedings in accordance with this opinion.

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

Judgments reversed, etc.


author: Desmond, J. Conway, J.

text:
    George Valashinas, Respondent, v. Stanley Koniuto, Appellant.
    Argued October 12, 1954;
    decided December 31, 1954.

      George L. Einman for appellant.
    I. When plaintiff included in his acceptance of December 15th the requirement that the sale should be closed “ no later than December 31, 1952,” plaintiff was imposing a condition upon his acceptance of defendant’s offer, and, in effect, making a counteroffer which, in law, constituted a rejection of defendant’s offer. (Wittwer v. Hurwitz, 216 N. Y. 259; Berk & Co. v. Derecktor, 301 N. Y. 110; Barber-Greene Co. v. Dollard, 239 App. Div. 655; Clark v. Dales, 20 Barb. 42; Baker v. Packard, 112 App. Div. 543; Winslow v. Moore, 30 Hun 311, 17 N. Y. Week. Dig. 429; American Woolen Co. v. Moskowitz, 159 App. Div. 382; Crossett v. Carleton, 23 App. Div. 366; Brown v. Norton, 50 Hun 248.) II. It is fundamental that the validity of a contract must be determined at its inception. If an acceptance is not valid at the time it is made, subsequent events cannot make it so. If the acceptance is bad, it kills the offer. The offer cannot thereafter be accepted by a subsequent acceptance. (Minneapolis & St. Louis Ry. Co. v. Columbus Rolling Mill, 119 U. S. 149; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Machinery Utilities Co. v. Fry, 224 App. Div. 392; Howells v. Stroock, 50 App. Div. 344.) III. The decision below works a substantial injustice .and, if not reversed, will stand as an unsettling precedent in the field of commercial relationships. (St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30; Sun Print. & Pub. Assn. v. Remington Paper & Power Co., 235 N. Y. 338; Mayer v. McCreery, 119 N. Y. 434.)

      A. E. Gold for respondent.
    I. The partnership agreement expressly provided that the sale of plaintiff’s interest was to take place when he made his election to sell which necessarily fixed the time of closing. (Hakes v. Peck, 1 Keyes 505; Merchants & Traders’ Nat. Bank v. Mayor of City of N. Y., 97 N. Y. 355; Davies v. Miller, 130 U. S. 284; Sanborn v. Fireman’s Ins. Co., 16 Gray [Mass.] 448; Buffum v. Buffum, 11 N. H. 451; Matter of Improvement Cliff Ave., 122 Wash. 335; Bettersby v. Shepeard, 89 Col. App. 756; Leader v. Telesphore Plante, 35 Me. 339; Mattieson v. Marks, 9 Mich. 423; Adams v. Ingalls, 30 Wn. 2d 282.) II. The Appellate Division correctly decided that the parties made a complete and binding contract without reference to the partnership agreement. (Ballen v. Potter, 251 N. Y. 224; Baker v. Packard, 112 App. Div. 543, 189 N. Y. 524; American Woolen Co. v. Moskowitz, 159 App. Div. 382; Crossett v. Carleton, 23 App. Div. 366; Brown v. Norton, 50 Hun 248; Clark v. Dale, 50 Barb. 42; Winslow v. Moore, 30 Hun 311, 17 N. Y. Week. Dig. 429; Gibbs v. Gibbs, 152 Ga. 614; Long v. Needham, 37 Mont. 408; Horgan v. Russell, 24 N. D. 490; Turner v. McCormack, 56 W. Va. 161; Matteson v. Scofield, 27 Wisc. 671).
   Desmond, J.

A business partnership agreement, between plaintiff and defendant, made this arrangement as to dissolution : If either party to this agreement shall at any time desire to dissolve such partnership, he shall give notice in writing to the other party hereto of his intention, stating in said notice the sum of money which he is willing to give for the other party’s undivided interest in said business and that he is willing to accept the same sum for his undivided interest in said business if the other party so elects. The party receiving such notice shall within ninety days from the date thereof either sell his interest or purchase the interest of the other party at the sum specified in said notice, and shall notify the party giving such notice of his intention to buy such party’s interest or to sell his own, according to the aforesaid option. In case of the failure of the party to whom said notice is given to make his election in writing within ninety days after the service of such notice, then the party giving such notice may elect whether he will sell his interest or purchase that of the partner upon the terms contained in said notice or option given by him. When a determination has been made as above provided the party selling shall convey his interest to the party purchasing upon the payment of said purchase price, and shall thereupon retire from the partnership. ’ ’

On December 12, 1952, defendant gave to plaintiff a written notice in these words:

“ Subject: Dissolving of Partnership
To: Mr. George Valashinas
In accordance with partnership agreement dated October 1,1946, prepared by Chernin & Gold, Attorneys at Law, I am submitting to you a written notice of intent to dissolve our existing partnership for a cash settlement of $200,000.00, plus % of the value of accounts receivable at the time of sale and % of all cash owned by the company on the date of sale.
Also in accordance with our partnership agreement, you must notify me within ninety days (90 days) from the above date of your intent.
Standby J. Koniuto s/ ”

Plaintiff replied with this letter:

“ Dear Stanley:
In accordance with your Notice of December 12, 1952, wherein you refer to the terms of our partnership agreement of October 1st, 1946,1 hereby elect to accept your offer to purchase my interest in our partnership business formerly purchased by us from the Star Instruments, Inc., in accordance with the terms of such letter, to wit: ‘ a cash settlement of $200,000.00, plus % of the value of accounts receivable at the time of sale and 1/2 of all cash owned by the company on the date of sale. ’
I will be ready, willing and able to give you a complete Bill of Sale and a sufficient conveyance to you of my interest in the real estate as may be required to effectuate such sale, as of December 31st, 1952, or sooner if you so choose. Such instruments will be delivered to you properly executed by me on such date fixed by you, no later than December 31st, 1952 at the offices of attorneys, Chernin & Gold, of 300 Press Bldg., Binghamton, N. Y., upon payment by you in accordance with the terms of your offer in your letter of December 12, 1952.
Very truly yours,
George Valashinas.”

The next in this series of communications was another letter, sent December 22, 1952, from plaintiff to defendant, thus:

Dear Stanley:
Please refer to my letter of December 15, in reply to your notice of December 12.
I am informed that the legal documents to effectuate the sale of my interest in the partnership, in accordance with your notice and my letter of acceptance, are now being prepared and will be ready in a few days.
Therefore, if you want to close this week we can do so or, if you prefer, we can wait until December 31, the date suggested in my letter. If I do not hear from you, I will assume that it is your intention to close on December 31st or within a reasonable time thereafter; at any rate, please let me know. ’ ’

Answering that, defendant, on December 27, 1952, wrote this to plaintiff:

‘ ‘ Dear George:
I am unable to purchase your interest in the business by December 31, 1952, in accordance with the proposal contained in your letters of December 15, 1952 and December 22, 1952. I, therefore, reject the same.
I also withdraw and cancel my letter to you dated December 12,1952.”

Two days later, plaintiff sent defendant a letter, refusing to accede to defendant’s attempted withdrawal of the latter’s original (December 12, 1952) offer, and demanding that, on December 31, 1952, or within a reasonable time thereafter ”, defendant sell his interest, on the terms he himself had offered. But defendant would not perform, and plaintiff brought this suit for specific performance. A motion by defendant for judgment dismissing the complaint as insufficient (Bules Civ. Prac., rule 106) was denied by Special Term, and, after the Appellate Division had unanimously affirmed that denial, the latter court, with certification of an appropriate question, granted defendant leave to appeal to this court.

Defendant’s main reliance is on his theory that, by setting a closing date (December 31,1952) in his accepting letter (supra) of December 15,1952, plaintiff, so defendant claims, introduced a new term and so made a new offer, or counteroffer, instead of accepting or rejecting the proposal, as made. We see no substance to that. Defendant’s buy or sell ” proposal said nothing about a closing date. The partnership agreement gave to plaintiff, as recipient of the original “ buy or sell ” notice, ninety days in which to make his choice and to close the transaction. But the ninety-day period allowed by the partnership pact to one in plaintiff’s position, in which to make his choice and carry it out, left for arrangement the fixation of a specific closing date, if plaintiff should (as he did) announce his choice well before the end of ninety days. When, on December 12th, defendant gave notice that he would buy or sell, at plaintiff’s choice, for $200,000, he (defendant) thereby gave notice that he himself was ready either to purchase plaintiff’s share or to convey his own. Three days later, plaintiff announced that he chose to sell and that he would be ready, on December 31st, to deliver the title papers and receive the money. That was not a counteroffer, modification or anything of the sort, but a positive, unambiguous expression of complete willingness to perform. Someone had to fix, or suggest, a closing date, since the partnership agreement did not do so. And, as both courts correctly held (surely not without reason), plaintiff’s notice that he would be ready, on December 31st, to close the transaction, was no more than a suggestion, request or overture (a case directly in point is Winslow v. Moore [30 Hun 311; see 17 N. Y. Week. Dig. 429, 430]). To turn that request into a new ‘ ‘ express condition ’ ’ or a peremptory insistence on making ‘ time of the essence ’ ’ is to exaggerate a simple, routine business detail into something never intended (see Winslow v. Moore, supra). Probably (we need not decide this) respondent was privileged to name a date to be “ of the essence ” (see Taylor v. Goelet, 208 N. Y. 253, 259), so long as the time so allowed was not unreasonable (Taylor v. Goelet, supra; see Murray Co. v. Lidgerwood Mfg. Co., 241 N. Y. 455; Trainor Co. v. Amsinck & Co., 236 N. Y. 392, 394). But, in fact, respondent did no more than recommend a closing date. If there could, otherwise, be any doubt about that, the doubt was removed by plaintiff’s voluntary statement in his next (December 22d) letter at a time when defendant’s original offer was still open, that plaintiff would close the transaction on December 31st, or earlier, or “ within a reasonable time ” after December 31st. To all of that, defendant said only that he would not close at all. He did not say that December 31st was inappropriate or inconvenient, nor did he ask for a later date. He simply tried to withdraw from the position to which he had, by his own choice, irrevocably committed himself in his letter of December 12th. Plaintiff, as was his right, refused to agree to such a withdrawal. It follows that, as both courts below unanimously held, plaintiff’s complaint, seeking specific performance, states a cause of action.

Little attention need be paid to defendant’s assertion that plaintiff’s first answering letter (December 15th) attempted still another modification, or new term, when it proposed the delivery by plaintiff of “ a sufficient conveyance ” of plaintiff’s interest in the partnership’s real property. All that meant was that plaintiff would be prepared, in routine fashion, to do what the sale of such a partnership interest necessarily involved, that is, give a “ sufficient ” deed of the realty.

If it were necessary to make so close an analysis, we would say that defendant’s first letter and plaintiff’s reply were not, in the conventional sense of contract making, an “ offer ” and “ acceptance ” at all. They were, instead, mere steps in the performance of the partnership contract, an exercise by each party, in turn, of an option provided for by that contract. However, the result is the same either way, since defendant had the right to tender the alternatives to plaintiff; thus plaintiff had the right to, and did, choose the sole alternative, and the right to suggest that the closing be on a particular date, “ or within a reasonable time thereafter ”. But defendant, without legal cause, refused to buy.

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

Conway, J.

(dissenting). This is an appeal by defendant by permission of the Appellate Division, Third Department, from an order which unanimously affirmed an order of Special Term, Supreme Court, Broome County, denying defendant’s motion pursuant to rule 106 of the Rules of Civil Practice for a dismissal of plaintiff’s complaint. The Appellate Division certified the following question: “Does the complaint of plaintiff-respondent state facts sufficient to constitute a cause of action? ”

Plaintiff sued for specific performance of a written contract alleged to have been entered into by the parties whereby the defendant would purchase the plaintiff’s interest in a partnership in which both the plaintiff and defendant were the sole partners. . The alleged agreement was made in connection with the dissolution of the partnership.

The material facts alleged in the complaint and deemed true for the purpose of this appeal are as follows:

On October 1,1946, the plaintiff and defendant entered into a written partnership agreement, the most relevant portion of which states: “If either party to this agreement shall at any time desire to dissolve such partnership, he shall give notice in writing to the other party hereto of his intention, stating in said notice the sum of money which he is willing to give for the other party’s undivided interest in- said business and that- he is willing to accept the same sum for his undivided interest in said business if the other party so elects. The party receiving such notice shall within ninety days from the date thereof either sell his interest or purchase the interest of the other party at the sum specified in said notice, and shall notify the party giving such notice of his intention to buy such party’s interest or to sell his own, according to the aforesaid option. In case of the failure of the party to whom said notice is given to make his election in writing within ninety days after the service of such notice, then the party giving such notice may elect whether he will sell his interest or purchase that of the partner upon the terms contained in said notice or option given by him. When a determination has been made as above provided the party selling shall convey his interest to the party purchasing upon the payment of said purchase price, and shall thereupon retire from the partnership.” (Emphasis supplied.)

That gave the partner receiving the notice ninety days in which to sell or purchase the interest of the partner giving the notice. The one giving the notice had no choice himself to buy or sell unless the one notified failed to respond to the notice for ninety days.

When a determination had been made as to who was to purchase and who to sell, then the “ party selling ” was to convey his interest to the “ party purchasing upon the payment of said purchase price” and for such “conveying” no period of time was prescribed in the agreement.

Following the making of the agreement, and pursuant to its terms, the parties conducted the business as copartners.

On December 12, 1952, the defendant gave the plaintiff the following notice in writing in accordance with paragraph 8 of the agreement:

“ December 12, 1952
Subject: Dissolving of Partnership
To: Mr. George Valashinas
In accordance with partnership agreement dated October 1,1946, prepared by Chernin & Gold, Attorneys at Daw, I am submitting to you a written notice of intent to dissolve, our existing partnership for á cash settlement of $200,000.00, plus % of the value of accounts receivable at the time of sale and Y> of all cash owned by the company on the date of sale.
Also in accordance with our partnership agreement, you must notify me within ninety days (90 days) from the above date of your intent.
Stanley J. Koniuto s/ ”

On. December 15, 1952, the plaintiff gave the defendant the following written notice of his alleged election and acceptance of the defendant’s offer set forth above:

“ Dear Stanley :
In accordance with your Notice of December 12, 1952, wherein you refer to the terms of our partnership agreement of October 1st, 1946,1 hereby elect to accept your offer to purchase my interest in our partnership business formerly purchased by us from the Star Instruments, Inc., in accordance with the terms of such letter, to wit: a cash settlement of $200,000.00, plus y2 of the value of accounts receivable at the time of sale and % of all cash owned by the company on the date of sale. ’
I will be ready, willing and able to give you a complete Bill of Sale and a sufficient conveyance to you of my interest in the real estate as may be required to effectuate such sale, as of December 31st, 1952, or sooner if you so choose. Such instruments will be delivered to you properly executed by me on such date fixed by you, no later than December 31st, 1952 at the offices of attorneys, Chernin & Gold, of 300 Press Bldg., Binghamton, N. Y., upon payment by you in accordance with the terms of your offer in your letter of December 12, 1952.
Very truly yours,
George Varashxuas. ”

These letters of December 12, 1952, and December 15, 1952, are controlling on the issue of plaintiff’s alleged acceptance of defendant’s offer. There either was or was not an acceptance at that time.

Therefore, stopping there for a moment, we find a seeming acceptance of defendant’s offer in the first paragraph of plaintiff’s letter of December 15th. When we come to the second paragraph, however, we find the introduction of at least three new terms not mentioned in the offer.

The offer was for cash alone for purchase or sale of a partnership interest. In the second paragraph of the claimed acceptance, there is the introduction of a new offer of “ a sufficient conveyance to you of my interest in the real estate as may be required to effectuate such sale * * (Emphasis supplied.) What is a sufficient conveyance of real estate — a full covenant and warranty deed, a bargain and sale deed or a quitclaim deed? It could be argued technically that any of these would “ effectuate such sale ”, and yet a purchaser demanding a full covenant and warranty deed might well find himself in a lawsuit. Nothing was said about that in the offer since it would not have been appropriate or proper under the terms of the partnership agreement.

Then there is a second new term provided for by the offeree. The closing must be “ as of December 31st, 1952 ” or sooner, but it must be on a date “ no later than December 31st, 1952 ”. That gave the offeror sixteen days to have ready $200,000 in cash and to determine what was one half of the value of the accounts receivable. It did more than that. It made time of the essence as we shall see from the authorities. Having fixed a date, which was not provided for in the partnership agreement, it invited the offeror to involve himself, potentially, in a lawsuit if he could not close on that date.

Further, there was a third new term not provided for in the offer of the offeror. That was that the instruments “ properly executed ” by the offeree were to be delivered at the offices of the attorneys of the offeree. The offices of those attorneys were located at Binghamton, New York. Star Instruments Company, the partnership, in 1952 had its office at Chenango Bridge, New York, and from that address the letter of offer was sent. The letter alleged to constitute an acceptance was written by plaintiff from 45 Dickinson Avenue, Port Dickinson, New York. Neither the partnership agreement nor the offer of the offeror provided that the papers were to be delivered at the place designated by the offeree in his alleged acceptance.

Consequently we have the offeree, after nominally accepting the offer in the first paragraph of his letter of December 15th, then proceeding to add new terms to the offer in that he would give a bill of sale and a “ sufficient conveyance ” of his interest in the real estate and that such instruments properly executed ” would be delivered no later than December 31st, 1952 ” at the offices of his attorneys in “ Binghamton, N. Y.” Any one of these additional terms might well be an invitation to a lawsuit.

It has always been a rule of acceptance that one must accept the offer as made. In Nundy v. Matthews (34 Hun 74) the rule is well stated at pages 77-78 as follows: “ The law upon this subject is simple and elementary. In 1 Parsons on Contract (6 ed., 176-178) the rule is stated thus: ‘ But there are cases where the answer either in words or in effect departs from the proposition, or varies the terms of the offer or substitutes, for the contract tendered one more satisfactory to the respondent. ’ In these cases there is-no assent and no contract. The respondent is at liberty to accept wholly or to reject, but one of these things he must do; for if he answers not rejecting, but proposing to accept under some modification this is a rejection of the offer. All the cases adopt this view. (Hutchison v. Bowker, 5 M. & W., 535; Vassar v. Camp, 11 N. Y., 441; The Chicago and G. E. R. R. Co. v. Dane, 43 id., 240; 32 Am. Rep., 35-51.) Winslow v. Moore et al. [30 Hun. 311], decided at the June Term, 1883, by this court, where Smith, P. J., speaking upon this subject says: ' Doubtless an acceptance in order to bind a party making an offer must be an unconditional and unqualified acceptance of all the material terms of the offer. ’ It follows, therefore, upon this branch of the case, that the defendant did not accept the plaintiff’s offer, but on the contrary rejected it. It is a familiar rule that there is no contract unless the parties thereto assent, and they must assent to the same thing-in the same sense. The obligation must be mutual. The minds of the parties must meet.” (Emphasis in original.)

Corbin on Contracts, at section 715, has this to say about making time of performance of the essence: “ Time may be made of the essence by an express provision to that' effect; there is no limit in this respect upon our freedom of contract, as long as no part performance has taken place. If the enforcement of such an express provision will have the effect of enforcing an excessive penalty or an unjust forfeiture, equity will prevent such enforcement; this is one limit upon our power to determine our own contractual rights and duties. But the vendor can make his duty to convey expressly conditional upon a payment on or before a specific day or hour; and the purchaser can make his duty to pay expressly conditional upon conveyance, by a specified time. Such a result is not achieved by merely promising to pay or to convey on a stated day; either party can achieve it by making his own promise expressly conditional upon such an exact performance by the other.” (Emphasis mine.)

I shall now quote from Williston on Contracts (rev. ed., 1936, Vol. 1, § 72): “An acceptance must he positive and unambiguous. This requirement is often treated as identical with the requirement dealt with in the following sections that an acceptance must not change, add to, or qualify the terms of the offer; and such changes or qualifications undoubtedly prevent an acceptance from being positive and unequivocal. But even though no change in the offer is suggested in the reply of the offeree, it nevertheless may not so clearly indicate assent to the offer as to create a contract.” In the same volume of Williston, section 77 reads in part as follows: “ A conditional acceptance is in effect a statement that the offeree is willing to enter into a bargain differing in some respect from that proposed in the original offer. The conditional acceptance is, therefore, itself a counter-offer and rejects the original offer, so that thereafter even an unqualified acceptance of that offer will not form a contract.” (Emphasis mine.) Williston also states in section 847 (p. 2376, n. 5): “ The correctness of decisions which extend the time, where the contract in express language fixes a final limit by such words as ‘ before ’ or * not later than ’ may be questioned. Such cases should be distinguished from those where the promise is merely to perform on a stated day, since an intent is indicated to make it essential that performance shall take place before the final day named.” (Emphasis supplied.) Numerous cases are cited by the above authorities. Suffice it to quote briefly from our own decision in Poel v. Brunswick-Balke-Collender Co. (216 N. Y. 310, 319): “There was no middle course. If it did not accept the offer proposed it necessarily rejected it. A proposal to accept the offer if modified or an acceptance subject to other terms and conditions was equivalent to an absolute rejection of the offer made by the plaintiffs. [Gases cited.] ”

As a result of this counteroffer of the plaintiff, the defendant made no reply, treating it as a rejection.

One week later, on December 22d, the plaintiff offeree mailed the following letter to the defendant offeror:

“ Dear Stanley:
Please refer to my letter of December 15, in reply to your notice of December 12.
I am informed that the legal documents to effectuate the sale of my interest in the partnership, in accordance with your notice and my letter of acceptance, are now being prepared and will be ready in a few days.
Therefore, if you want to close this week we can do so or, if you prefer, we can wait until December 31, the date suggested in my letter. If I do not hear from you, I will assume that it is your intention to close on December 31st or within a reasonable time thereafter; at any rate, please let me know.” (Emphasis supplied.)
Evidently the plaintiff offeree realized that he had erred in making December 31st of the essence of the proposed agreement for he now added or within a reasonable time thereafter ”.

The defendant then sent this letter on December 27, 1952:

“ Dear George:
I am unable to purchase your interest in the business by December 31, 1952, in accordance with the proposal contained in your letters of December 15, 1952 and December 22.1952. I, therefore, reject the same.
I also withdraw and cancel my letter to you dated December 12, 1952.” (Emphasis supplied.)

On December 29th, the plaintiff sent the defendant a letter in reply as follows:

‘ ‘ Dear Stanley:
I wish to acknowledge receipt of your letter of December 27.1952.
I regret that I cannot agree to your request to withdraw your offer of December 12th, 1952 which I accepted by my letter of December 15th, 1952.
I therefore expect you to perform in accordance with the terms of your offer and my acceptance on December 31,1952 or within a reasonable time thereafter.” (Emphasis supplied.)

In the world of business where the formation of a contract through offer and acceptance may entail great liability, the courts have been most careful in withholding a decision that a contract has been entered into between an offeror and an offeree unless the offer is accepted in the form and content in which it is made. This is one field in the law where logic and precision obtain for the reason already stated, that the liability of one entering into a contract may be very great indeed. In this case there was involved a cash item alone of $200,000 and the one making the offer under paragraph 8 of the partnership agreement had to be ready either (1) to pay out that amount in cash, or (2) to accept such an amount. In this case it was said below: " Plaintiff’s acceptance letter, though couched in somewhat peremptory words, was an overture, which was amplified by his letter of December 22d. * * * If it had been in defendant’s mind that the fixing of the date for mutual performance remained for negotiation between the parties, plaintiff’s original fixing of a date and his subsequent suggestions in no way operated as a rejection of the offer but opened the way for fixing the time of performance by both parties.” (Emphasis supplied.) In my judgment we cannot say, particularly in a business transaction such as this, that an offer may be accepted by an overture which may be amplified one week later.

The majority opinion of this court relies on Winslow v. Moore (30 Hun 311, digest in 17 N. Y. Week. Dig. 429, 430) in holding that the language employed by plaintiff in his letter of December 15th fixing the closing date of the transaction “ no later than December 31st, 1952 ” was “ no more than a suggestion, request or overture.” In that case the words used were “ I will be prepared to accept the transfer and pay the money, etc., at W. & J. D. Kernan’s office, on Friday, December 31, 1880, at 2 p.m.” General Term held that such a naming of time and place of performance was not a condition but a " mere suggestion for the convenience of all parties.” General Term further found that the defendants had waived any objection on the ground that the acceptance suggested a time and place of performance. The words used in the Winslow case (supra), unlike the language used here, did not make time of the essence and the court properly held that it was not a condition but a “ mere suggestion for the convenience of all parties. ’ ’ Here the plaintiff unequivocally stated that the transaction must close “ no later than December 31st, 1952 ’ ’ and thus attached a condition to the acceptance making time of the essence which amounted to a counteroffer and hence a rejection. In fact the Winslow case was cited and explained in the case of Nundy v. Matthews (34 Hun 74, supra) as authority for the proposition that where the offeree proposes to accept an offer with some modifications, he thereby rejects the offer, and the acceptance in order to be binding must be an unconditional and unqualified acceptance of all the material terms of the offer.

Accordingly, the order of the Appellate Division and that of Special Term should be reversed, the question certified answered in the negative and the complaint dismissed, with costs in all courts.

Dye, Fuld, Froessel and Van Voorhis, J J., concur with Desmond, J.; Conway, J., dissents in an opinion in which Lewis, Ch, J., concurs.

Order affirmed, etc.


author: Desmond, J. Fboessel, J. Fuld, J. Vah Voorhis, J.

text:
    Bernard Comereski, Appellant, v. City of Elmira et al., Respondents.
    Argued January 3, 1955;
    decided February 24, 1955.

      Donald H. Monroe for appellant.
    I. The agreement is a contract to guarantee bondholders, and is not authorized or permitted by the provisions of the Elmira Parking Authority Act. II. The agreement is prohibited by and is in violation of the Elmira Parking Authority Act. III. The agreement is illegal because it contemplates and requires that meters be maintained on the streets of the city, not merely as a means of regulating traffic but for the purpose of raising revenue. (People v. Littman, 193 Misc. 40; Laubach & Sons v. City of Easton, 347 Pa. 542.) IV. The agreement is illegal and void because it is an illegal surrender of its governmental function and power. (Schwab v. Graves, 221 App. Div. 357; Belden v. City of Niagara Falls, 230 App. Div. 601; Board of Commissions of City of Newark v. Local Govt., 133 N. J. L. 513.) V. The provisions of the purported agreement are in violation of section 1 of article VIII of the New York Constitution. (Union Free School Dist. v. Town of Rye, 280 N. Y. 469; Altschul v. Ludwig, 216 N. Y. 459.) VI. The act of the city in the enactment of Local Law No. 5 of 1949 conveys no further power or authority on the Elmira Parking Authority than is provided by the Elmira Parking Authority Act.

      Harry Moseson for City of Elmira Parking Authority, respondent.
    I. The contract does not violate section 1 of article VIII of the New York Constitution. (Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; Union Free School Dist. v. Town of Rye, 280 N. Y. 469; Admiral Realty Co. v. City of New York, 206 N. Y. 110; Hesse v. Rath, 249 N. Y. 436; Bush Term. Co. v. City of New York, 282 N. Y. 306; Salzman v. Impellitteri, 305 N. Y. 414; Davidson v. City of Elmira, 180 Misc. 1052, 267 App. Div. 797, 292 N. Y. 723.) II. The contract does not violate the provisions of the Elmira Parking Authority Act. III. The contract was not in violation of the provisions of the city charter. IV. The contract does not involve the City of Elmira in a surrender of any of its governmental functions and powers. (People v. Littman, 193 Misc. 40.) V. The complaint does not set forth any allegation of actual or potential waste or injury to the City of Elmira. (Western N. Y. Water Co. v. City of Buffalo, 242 N. Y. 202; Altschul v. Ludwig, 216 N. Y. 459.)
   Desmond, J.

Plaintiff, as a taxpayer in the city of Elmira, sues for a judgment which would declare invalid a contract between the city and the Elmira Parking Authority, the latter being a public benefit corporation organized, in 1948, pursuant to a special act which is title 9 of article 7 of the Public Authorities Law. The general purpose of the authority, whose members are appointed by the Mayor of Elmira, is to acquire and use real and personal property for indoor and outdoor automobile parking projects ” in that city. The city of Elmira, itself, has, under section 72-j of the General Municipal Law, and section 54 of the Vehicle and Traffic Law, power to set up and operate parking lots and garages, and parking meters in its streets. However, in Elmira it was decided, for reasons not explained in the record and not important for our purposes, that the Parking Authority would develop and operate parking lots, while the city would own and operate parking meters in the Elmira streets. In order to use part of the city’s parking meter profit, if any, to defray the losses, if any, of the authority’s parking lots, the two public corporations, in May, 1950, entered into a contract, the validity of which is here questioned by plaintiff. The Appellate Division, for reasons with which we are in general agreement, has held the contract lawful, and has dismissed plaintiff’s complaint.

The contract recites that the authority has been created to alleviate traffic and parking problems, in the city of Elmira, through the acquisition, operation and maintenance by the authority of adequate parking facilities, and for the payment of the cost of the same out of their operation; that the city is desirous of co-operating with the authority in this respect and, to that end, will turn over to the authority part of the revenues from the city’s street meters. After reciting that the authority has authorized the issuance of $500,000 in bonds, the agreement goes on to provide that there shall be estimated, every year, the deficit, if any, in the funds of the authority to be available for the payment of its bonds, that the authority shall give notice to the city of the amount of such estimated deficit, if any, and that the city shall then pay the amount thereof to the authority. Such payments are, by the contract’s terms, to be made from the city’s net revenue from its own parking meters only, and, in no event, is more than $25,000 to be paid in any calendar year, the city further agreeing that, during the existence of the agreement, which is to run until the bonds are paid, the city may abandon any of its meters or change their sites but may not substantially reduce their number, and that the city will not cause to be operated any public parking areas except those operated by the authority. The only other important provision of the agreement is the one which says that the agreement shall be construed to be for the benefit not only of the parties but for the benefit of the holders of the bonds, also.

An Elmira Local Law (No. 5 of 1949) amended the city’s charter to permit the execution of this very contract (see Local Laws for 1949, published by the Secretary of State, p. 50). That Local Law, we are persuaded, is well within the grant of “ Home Rule ” powers found in section 12 of article IX of the State Constitution, and section 11 of the City Home Rule Law. Plaintiff insists, however, that the contract (and the Local Law) violates section 1 of article VIII of the State Constitution and, also, contravenes, or at least is not permitted by, the sixth and twelfth sections of the Elmira Parking Authority Act (Public Authorities Law, §§ 1487, 1493).

We deal, first, with the assertion of plaintiff that the making of this contract violated section 1 of article VIII of our State Constitution which says, among other things, that no city shall ‘ ‘ give or loan its credit to or in aid of any individual, or public or private corporation or association ’ ’. The principal decision answering this is Union Free School Dist. v. Town of Rye (280 N. Y. 469), where this court held (p. 474) that the same constitutional language here cited did not prohibit gifts of money by a city or county to another public corporation for a public purpose. In other words, the first part of section 1 of article VIII of the Constitution prohibits a gift or loan of money by a county or city to an individual or private group, whereas the second part of the section, with which we are here concerned, prohibits only the giving or loaning, of its credit, by a county or city, to an individual or public or private group. The Union Free School case (supra) is flat authority that the city may do what the city is doing here, and what it is specifically authorized by Local Law No. 5 (supra) to do, that is, make a gift of its public funds to another public corporation for proper public purposes (see Western N. Y. Water Co. v. Erie Co. Water Auth., 305 N. Y. 758; and see Davidson v. City of Elmira, 180 Misc. 1052, 1058, affd. 267 App. Div. 797, motion for leave to appeal denied 292 N. Y. 723).

Next, we come to plaintiff’s allegation that the contract is forbidden by, or at least not authorized by, section 1487 of the Public Authorities Law. That lengthy section, in its first subdivision, empowers the city to convey to the authority for the latter’s purposes any real or personal property owned by the city, subject to the requirement that, as to any real property so conveyed, title shall remain in the city. In other words, the city could have made a gift to the authority, of the parking meters themselves. Subdivision 3 of section 1487 authorizes the making, between the city and the authority, of contracts for conveyances by the city to the authority of property, which contracts “ may be pledged by the authority to secure its bonds ”, and the obligations of the city incurred thereby are to be provided for in the city’s capital budget. We need not decide whether this language in terms authorizes the city to agree to make up, out of its meter revenue, part of the authority’s operating deficit. At least, it does not forbid such a contract as we are here examining, and — what is more important — it is a broadly stated legislative consent that the city freely turn over property to the authority, and make contracts for such turning over, which contracts shall form part of the security for the authority’s bonds. No reason appears why the Legislature, thus giving the city a free hand to assign to the authority any real or personal property useful for the authority’s “ projects ”, should at the same time forbid the allocation of part of the city’s meter profits to help out the authority in making- up the latter’s deficits. In all these discussions, we keep in mind that both the city and the Parking Authority are public corporations of the people of Elmira carrying out public purposes (see legislative declaration in Public Authorities Law, § 1495, and see Denihan Enterprises v. O’Dwyer, 302 N. Y. 451), and that the members of the authority are public officials appointed by the Mayor of the city.

Plaintiff’s chief reliance, it seems, for its charge that this contract is illegal, is on that part of the Elmira Parking Authority Law, which appears as section 1493 of the Public Authorities Law, and reads thus: “The bonds and other obligations of the authority shall not be a debt of the state of New York or of the city, and neither the state nor the city shall be liable thereon, nor shall they be payable out of any funds other than those of the authority ”. Such provisions are common, indeed almost universal, in the various statutory systems creating “ public authorities ’ ’ in this State. Frequently, those statements, that municipalities are not liable on the authority’s bonds and that the bonds are payable out of the authority’s funds only, are coupled with authorization or mandates of various kinds of direct assistance to authorities from those same municipalities. Apparently, the Legislature did not see, nor do we, any inconsistency between the two kinds of statutory pronouncements. Provisions such as those in section 1493 mean just what they say: the authority’s bonds are to be a debt of the authority only, payable out of its funds only. They do not forbid the transfer of money or property by State or city to an authority. Indeed, the numerous statutes cited in note 2 hereinbelow show that a city’s nonliability on an authority’s bonds and the same city’s right or duty to assist the authority financially are part of the same conventional statutory pattern. We should not strain ourselves to find illegality in such programs. The problems of a modern city can never be solved unless arrangements like these (used in other States, too, see State ex rel. Bibb v. Chambers, 138 W. Va. 701) are upheld, unless they are patently illegal. Surely such devices, no longer novel, are not more suspect now than they were twenty years ago when, in Robertson v. Zimmerman (268 N. Y. 52, 62) we rejected a charge that this was a mere evasion of the constitutional debt limitations, etc. Our answer was this (p. 65): Since the city cannot itself meet the requirements of the situation, the only alternative is for the State, in the exercise of its police power, to provide a method of constructing the improvements and of financing their cost. The statute in question affords an equitable and proper method of accomplishing such a result ”. The Robertson case (supra) involved the transfer from the city of Buffalo of property and rights far more extensive and valuable than those in the present case.

The judgment should be affirmed, with costs.

Fboessel, J.

(concurring). I concur for affirmance with Judge Desmond. I agree — and for the reasons stated by him — that the contract between the authority and the city in nowise violates section 1 of article VIII of the State Constitution.

While section 1493 of the Public Authorities Law provides that the authority’s bonds shall not be a debt of the city, and that the city shall not be liable thereon, nor shall they be payable out of any funds other than those of the authority, this language does not forbid the city from sharing voluntarily with the authority its parking meter funds as provided in the contract. The city is charged with the burdensome obligation of solving its problem of traffic congestion, which plagues so many of our municipalities today. Since it may in its efforts to relieve this problem condemn real property at its own cost, not only for the projects of the authority, but for new highways and the widening of .existing highways, as provided in subdivision 2 of section 1487, increase its police force or otherwise expend moneys in aid of this purpose, surely it may in aid of the same purpose and at much less cost voluntarily make grants to the authority.

Indeed, subdivision 12 of section 1485 of the Public Authorities Law, enacted simultaneously with section 1493, and which must be read together, expressly authorizes the authority to “ accept grants, loans or contributions from the * * * city * * * and to expend the proceeds for any purposes of the authority ” (emphasis supplied). It necessarily follows that if the city may thus make an unconditional grant of moneys it may voluntarily undertake a much lesser responsibility by limiting the amount of its contributions to not more than a specific sum, payable only out of parking meter fees when available, “ for any purposes of the authority ”.

Fuld, J.

(dissenting). Section 1493 of the Public Authorities Law in the most unequivocal of language provides that bonds issued by a parking authority shall not be payable out of city funds:

The bonds and other obligations of the authority shall not be a debt of the state of New York or of the city, and neither the state nor the city shall be liable thereon, nor shall they be payable out of any funds other than those of the authority.”

In the face of that explicit prohibition, I find it impossible to uphold as permissible the city’s contract with the Elmira Parking Authority that it will make good any deficit, up to $25,000 a year — if the Authority is unable in any year to meet payments due on its bonds — by paying the amount of said deficit out of the net revenue realized from the city’s own parking-meters. I see no escape from the conclusion that such an agreement plainly contravenes the statutory provision that the bonds of the Authority shall not be a debt of the city or be payable out of any funds other than those of the Authority.

Whatever force the local law — to which Judge Desmond refers (opinion, pp. 251-252) —may otherwise have, it certainly cannot override or affect the express prohibition of section 1493: section 1501, in so many words, provides that, “In so far as the provisions of this title are inconsistent with the provisions * * * of any local law of the city, the provisions of this title shall be controlling. ’ ’

To suggest that the contract is valid, because section 1487 “ empowers the city to convey to the authority for the latter’s purposes any real or personal property owned by the city ” (opinion, p. 252), leaves out of account the statute’s limiting provisions that the city may make such a conveyance only of property owned by it and only ‘‘ for use by the authority as a project or projects or a part thereof ” (Public Authorities Law, § 1487, subd. 1), the term “ project ” being defined as “ any area or place operated or to be operated by the authority for the parking or storing of motor and other vehicles ” (§ 1483, subd. 6). The meaning of the statute is clear. It authorizes a present conveyance of property owned by the city to the authority, but it is essential that such property be used in the operation of a parking lot. The agreement before us makes no present conveyance of anything now owned by the city, and, beyond that, the moneys to be turned over to the Authority by the city are manifestly not designed for use in the operation, or in the construction or maintenance, of any parking lot. The sole purpose underlying the contract provision in question is to bind the city for the future so as to assure payment, out of city funds, to holders of the Authority’s bonds after a deficit has occurred in the latter’s own funds. This is made abundantly clear by section 8 of the agreement which provides that it shall be construed to be not only for the benefit of the parties, but also for the benefit of the holders of any of the aforesaid bonds of the Authority.” Quite obviously, the bonds of the Authority are, contrary to the proscription contained in section 1493, made payable, at least to the extent of $25,000 a year, out of funds other than those of the Authority.

Although I could, therefore, rest my dissent solely on the ground that the agreement is not authorized by the statute, I would go further and add that, in my view, the agreement also offends against section 1 of article "VTII of this state’s Constitution.

That constitutional provision, this court was careful to point out in Union Free School Dist. v. Town of Rye (280 N. Y. 469) draws a clear distinction ” between a gift or loan of the money or property ” of a unit of local government and a gift or loan of its credit ” (p. 474; see, also, Western N. Y. Water Co. v. Erie Co. Water Auth., 279 App. Div. 1132, affd. 305 N. Y. 758). In this case, as already appears, Elmira agreed to guarantee the payment of the Authority’s bonds, up to $25,000 a year, out of revenues to be realized by the city from its own parking meters. It is quite evident that the contract provided, not for any gift or loan of money or property on hand, but rather for a gift or loan of the city’s credit, for an obligation and purpose not its own. The city’s promise is, in essence, to make good, for an unspecified and indeterminate period and out of funds not in existence, an indebtedness incurred by the Authority. The circumstance that that promise is conditional in nature does not alter the fact that the contract calls upon the city to answer for the default of another. The vice of the arrangement is that it mortgages, for the use of others, future general funds of the city which it would otherwise have available for its own purposes, and opens the door to wholesale evasions of the applicable constitutional debt and taxing limitations. It was just this sort of situation at which the constitutional provision was directed. “ The entire machinery of local government may break down,” the court wrote in the Union Free School Dist. case (supra, 280 N. Y. 469, 474), “ if the credit of the units of local government required to carry out their governmental functions is impaired, and there may be danger of such impairment if a local unit is permitted to give or loan its credit or to borrow money in aid of undertakings outside of its own field. To safeguard that credit the Constitution permits the use of its credit by a local unit only for the purposes of that unit, and prohibits it from giving or loaning its credit to or in aid of any ‘ public or private corporation. ’ ” And, added the court (p. 480), “ Within its defined limits the constitutional restriction must be rigidly enforced according to its letter and its spirit. Every obligation of a governmental unit must rest upon its own credit and no governmental unit may give or loan its credit except for the purpose of meeting its own obligations incurred in the performance of a governmental function or duty which the State may entrust to it.”

Nor is there any basis for the fear that “ the problems of a modern city can never be solved ” unless we uphold “ arrangements like these ” (opinion, p. 254). Section 72-j of the General Municipal Law provides explicit warrant for a city itself to construct and operate a parking project without the intervention of a parking authority. However, when an authority is set up, any contract entered into between the authority and the city, any arrangements made between them, must comply with the operative provisions of constitution and statute — and that is so no matter how desirable the end in view may appear to be.

The complaint states a cause of action; the Appellate Division’s order of dismissal should be reversed.

Vah Voorhis, J.

(dissenting). I concur in the dissenting opinion by Judge Fuld. Concerning the constitutional objection, it is pertinent to observe that a parking authority involves the exercise of a proprietary rather than a governmental function on the part of a municipality (Augustine v. Town of Brant, 249 N. Y. 198), and consequently the constitutional objection as well as the statutory objection discussed by Judge Fuld is well taken (contrast Town of Amherst v. County of Erie, 260 N. Y. 361, with Village of Kenmore v. County of Erie, 252 N. Y. 427; Union Free School Dist. v. Town of Rye, 280 N. Y. 469).

Conway, Ch. J., Dye and Burke, JJ., concur with Desmund, J.; Froessel, J., concurs in a separate opinion; Fuld, J., dissents in an opinion in which Van Voorhis, J., concurs in a separate memorandum.

Judgment affirmed.

      . See Public Authorities Law, §§ 109, 132, 159, 207, 237, 262, 287, 312, 511, 534, 564, 583, 639, 663, 708, 806, 831, 855, 884, 1037, 1061,1083, 1103, 1136, 1308, 1332, 1358, 1384, 1414, 1436, 1474, 1513, former 1531, 1553, 1577, 1611.

      . See Public Authorities Law, §§ 154, 230, 231, 255, 256, 281, 282, 308, 529, 556, 557, 579, 632, 633, 656, 657, 810, 835, 1041, 1053, 1079, 1095, 1355, 1379, 1404, 1407, 1449, 1468, 1507, former 1525, 1547, 1571, 1605.

      . Nor does subdivision 12 of section 1485 — mentioned by Judge Fkoessel (concurring opinion, p. 255) —furnish support for respondents’ position. That provision does no more than empower the authority to " accept grants, loans or contributions from the United States, the state of New York * * * or the city, or an individual, by bequest or otherwise, and to expend the proceeds for any purposes of the authority.” This specification of ordinary powers accorded the authority cannot possibly be read or regarded as an implied grant of a power to the city (to pay bonds of the authority out of its own funds), in the face of section 1493’s express prohibition to the contrary.