author:
LottghbaN, J.
      Thacher, J.

text:
    The People of the State of New York, Respondent, v. John Williams, Appellant.
    Argued January 18, 1944;
    decided April 13, 1944.

      Alexander I. Borke, Le Roy Campbell and Stanley S. Katzen-stein for appellant.
    I. Defendant was deprived of his right to a fair trial by the concealment of the names of witnesses by the District Attorney on the selection of the jury. (People v. Hughes, 137 N. Y. 29; People v. Grieco, 266 N. Y. 48; The People v. Casey, 96 N. Y. 115; People v. McQuade, 110 N. Y. 284; People v. Hull, 251 App. Div. 40; Gulf & Railway Co. v. Shane, 157 II. S. 348; Hildreth v. City of Troy, 101 N. Y. 234; Searle v. Romani Catholic Bishop, 203 Mass. 493; McHugh v. Jones, 258 App. Div. Ill, 283 N. Y. 534; People v. Rosen, 251 App. Div. 584, 275 N. Y. 627.) II. Defendant’s guilt was not proven beyond a reasonable doubt. (People v. Spickler, 255 N. Y. 408; People v. Davino, 284 N. Y. 486; People v. Seppi, 221 N. Y. 62; People v. Nitsberg, 289 N. Y. 523; People v. Fiorina, 232 N. Y. 545; People v. Buchalter, 289 N. Y. 181; Viereck v. U. S., 63 S. Ct. E. 561; People v. Watson, 216 N. Y. 565; People v. Manganaro, 218 N. Y. 9; People v. Slover, 232 N. Y. 264.)

      Frank S. Hogan, District Attorney (Stanley H. Fuld and Ferdinand J. Wolf of counsel), for respondent.
    I. The defendant’s guilt was proved beyond a reasonable doubt. (People v. Deitsch, 237 N. Y. 300; People v. Croes, 285 N. Y. 279; People v. Jackson, 182 N. Y. 66; Wilson v. United States, 162 U. S. 613; People v. Feller, 291 N. Y. 438; People v. Buchalter, 289 N. Y. 181; People v. Goldstein, 285 N. Y. 376; People v. Arata, 255 N. Y. 374; People v. Becker, 215 N. Y. 126; People v.
      Seidenshner, 210 N. Y. 341; People v. Driscoll, 107 N. Y. 414.) II. Tlie defendant’s right to a fair and impartial trial was not impaired by the district attorney’s failure to name some of the People’s witnesses before the trial. (People v. Dally, 174 Mise. 830; People v. Nationwide Neivs Service, Inc., 172 Mise. 752; People v. Beyer, 163 Mise. 890; People y. Mitchell, 266 N. Y. 15; People v. Cosmo, 205 N. Y. 91; Snyder v. Massachusetts, 291 IJ. S. 97.)
   LottghbaN, J.

This defendant, a colored man thirty-one years old, has been sentenced to death for the murder of Mrs. Aslee Edmond, a colored woman of like age. Early on the morning of December 6,1942, her body was found upon a landing underneath a stairway leading upward from the first floor of a tenement house in the Harlem district of the city of New York. An autopsy exposed fifteen scattered stab wounds, one of which went through her heart and caused death. Her clothing was disarranged, hut no trace of semen was discovered.

Neither Mrs. Edmond nor the defendant lived in the premises where her body was found. Her relatives and acquaintances swore they never saw him until after her death. He and members of his family swore he was at home during the time in issue.

Conspicuous among the prosecution witnesses were Arthur James and Emilio Funicello. They gave testimony that the defendant had repeatedly confessed his guilt of this crime to them at a time when all three were confined in a so-called house of detention which in .fact was a district prison of the city of New York. In respect of this testimony of James and Funicello, the Trial Judge in his charge said to the jury: “ If you come to the conclusion that the defendant did not admit to either of the witnesses James or Funicello that he stabbed and killed the deceased — that is, if you are not satisfied beyond a reasonable doubt that he made the admission or confession that he stabbed and killed Aslee Edmond to either of these two witnesses, then I charge you as matter of law that you cannot convict the defendant of any crime and that you then should acquit him.” In line with that instruction, the verdict of guilty must now be taken to have been reached upon the basis of an acceptance by the . jury of the story of James and Funicello. Hence the first question is whether the testimony of these two' witnesses is of such weight and credibility as to convince ns that the jury was justified in finding the defendant guilty beyond a reasonable doubt (People v. Crum, 272 N. Y. 348, 350; People v. Weiss, 290 N. Y. 160, 170. See People v. Becker, 210 N. Y. 274, 313).

The defendant was held in the house of detention from the day of this crime (December 6,1942) until he was put on trial on May 12, 1943. During that period, the was sojourning in that house as a stool pigeon, though he Avas supposed to he then in a State prison under a sentence of from ten to twenty years for robbery committed as a second offender. The trial of this defendant was the third occasion on which James had made to a court of justice a testimonial report of an alleged oral confession of an accused. In respect of James’ present evidence, the Trial Judge said: We have now the testimony that he does not expect any hope of reward. He is testifying because some public spirit moved him. ’ ’

The witness Funicello had been an under-cover man in the same house of detention from as far hack as November, 1937, though he had been sentenced in 1932 to a State prison for the term of his natural life upon his conviction of robbery committed as a fourth offender. He, too, is a seasoned reporter of oral admissions of high criminal guilt .and he can boast of no less than a thousand felonies of his own. (See People v. Feolo, 282 N. Y. 276.)

James and Funicello quoted the defendant as having told them he knew Mrs. Edmond in Brooklyn when she lived there prior to her removal to Manhattan some nine or ten months before she was killed. Mrs. Edmond’s fifteen year old daughter, who had always lived with her, did not remember ever having lived in Brooklyn. James and Funicello quoted the defendant as having told them he took several dollars out of the pocket-book of Mrs. Edmond after he stabbed her. Mrs. Edmond had no pocket-book her when she left home on the night before her death, or so her daughter testified. J ames and Funicello quoted the defendant as having told them he had immediately traded away his overcoat after killing Mrs. Edmond. There is in evidence an apparently trustworthy business record of a sale on'November 27, 1940, to the defendant of “the overcoat that he ivas wearing when he was arrested on the day of the tilling’ — December 6, 1942.

According to Pnnieello, the defendant’s confessions to him were recited in the privacy of cell without hindrance hy the keepers, although a rule of the house of detention forbade any inmate to enter the cell of another. If Funicello is to he credited, the defendant seemingly was solicitous lest he fall short in an endeavor to vouchsafe his guilt of a wholly unjustified homicide of the gravest degree. Indeed the defendant (so Funicello said) went so far on one occasion as to make for Funicello a sketch of the place where Mrs. Edmond met her death and indicated thereon — among other things — the position of the body of Mrs. Edmond under the stairway, the location of a nearby ceiling light and the presence on the stairway of a woman. This draftmanship (so Funicello said) was undertaken by the defendant subsequently to a time when the defendant had upbraided Funicello for having reported to the District Attorney earlier admissions of the defendant.

The woman so referred to by Funicello came into sight at the trial when the People called to the witness stand a seventeen year old girl of sorry repute. Her testimony was that early on the day of the homicide she saw the defendant in the tenement house hallway where the body of Mrs. Edmond was thereafter found. This witness (who lived on the premises) said she had then and there stopped and that the defendant thereupon had stood still while they gazed at each other “ for a minute.” This witness also said: <£ I looked at his face. I didn’t see any blood. He was brushing off his- coat. He didn’t say anything to me. ’ ’

Later on that same day of the homicide, the same witness identified the defendant to the police as the man she had seen in the tenement house hallway just before the finding of Mrs. Edmond’s body there. In respect of the preliminaries of that identification, a first-floor tenant of the building testified in behalf of the defendant as follows: Well, the policeman brought the defendant — the policeman brought the man to our door and they asked the girl to identify him. She stood at the door and looked at him between twenty and twenty-five minutes. She didn’t say anything.” The layout of the hallway in question and the claimed existence of an identification witness had thus been impressed on the defendant after the homicide had been committed and consequently the report by James and Funicello of the defendant’s awareness of these facts is in any view of it of quite dubious significance.

On the whole, we cannot see in the testimony of James and Funicello a sufficient basis for the signing of a warrant for the death of this defendant.

This court must now say a word in criticism of the trial prosecutor. In his summation,, he said to the jury: “I don’t know what percentage, gentlemen, of the crimes in this town, in this state, in this country, in this world would ever be solved without the testimony of informers. We are entitled to use those persons. The age of chivalry is gone. The days when knights in armor, men on the field of battle, played the games according to the rules of football or boxing are over and forgotten. There are no rules of the game when you are investigating a crime, or when you are trying to find out and prove the guilt of a defendant.”

These sentiments, of course, were inexact. There is a canon that calls for candor on the part of every lawyer in his conduct before the courts. From that viewpoint, the trial prosecutor erred when in his opening statement to the jury panel on this trial he concealed the identity of James and Funicello by referring to them as “ two other witnesses who I am sure you gentlemen do not know.” This was not right because the trial prosecutor then knew that three members of the panel (who later were accepted as trial jurors) had served on the jury in other capital cases in which Funicello had been a prosecution witness. This defendant was in fairness entitled to be informed on that score at the time of the selection of the jurors who were to say whether his guilt was proved by Funicello’s testimony.

For the sake of justice according to law, it may be worth while to add that persons detained for trial on criminal charges or as witnesses should not be put or kept in the same room with convicts under sentence. (County Law, § 92. Of. Code Crim. Pro. § 618-b.)

The judgment of conviction should be reversed and a new trial ordered.

Thacher, J.

(dissenting). There was ovei’Avhelming proof

In People v. Becker (215 N. Y. 126) the rule Avas applied to a situation strikingly similar to the situation presented in this case. There Rose, Webber and Yallon employed the gunmen who killed Rosenthal and the question Avas whether or not the defendant instigated them to hire the assassins. Admitting their complicity in the murder, these accomplices having been promised that they would go free, provided they did not actually fire the shots, testified that they were set in motion by Becker, and his guilt depended on the truth or falsity of their testimony. Indeed the jury was instructed “ if the jury disbelieve the testimony of Itose, Webber and Vallon in its main essential features, they mnst acquit tbis defendant ” and this court held that there could he no conviction of the defendant unless the jury believed the testimony of the three accomplices. Dealing •with the correlative duties of court and jury in this situation, Chief Judge Willard Bartlett, writing the opinion of the court, said (p. 136): “ Extensive as is the power of review vested in this court on an appeal from a judgment of death, the law does not intend to substitute the conclusion^ of fact which may be drawn from the evidence by seven judges for the conclusions of fact which have been drawn from the evidence by twelve jurors, unless we are clear that the view of the facts taken by the jury is wrong. It is our duty to affirm, if the trial was fair and without legal error and the verdict was not against the weight of evidence. We are to see to it that the trial was fair and that there was sufficient evidence, within recognized rules of law, to support the verdict; this done, the responsibility for the result rests with the jurors.” (Italics in the original.)

Characterizing the witnesses, the court said (p. 140): course these accomplices were very bad men; accomplices in murder always are; but it is almost a truism in criminal law that if the testimony of bad men were absolutely rejected many murderers would escape the punishment which they deserve. ’ ’

And in concluding its opinion the court said (p. 158): “ We desire that the views which lead us to affirm this judgment shall be made unmistakably clear. Doubtless, a very strong argument can be made in favor of the defendant, based upon the inducement of the avowed accomplices to swear falsely, their opportunity to fabricate evidence, and the lack of conclusiveness in the corroboration. All this, however, was a question for the jury with whose determination we are not justified in interfering unless we can say that it was plainly wrong — which, as already stated, we cannot say. Therefore, unless the rules of law which have heretofore governed the disposition of criminal appeals are to be changed merely because there might have been a refusal to convict on this evidence, we think (1) that they required the submission of the issues of the jury; (2) that the case was fairly and impartially tried; (3) that no errors of law were committed prejudicial to the defendant, and (4) that the verdict cannot be deemed to be against the weight of evidence or against law within the meaning of section 528 of the Code of Criminal Procedure. It is not onr duty to try the case over again upon the printed record. We have not seen the witnesses. We are deprived of the aid furnished by their appearance, demeanor, facial expression and manner of testifying. These advantages the jnrv enjoyed; and there being sufficient evidence in quantity and quality to take the case to the jury, their verdict, in the absence of any of the statutory grounds for reversal, is conclusive even upon the Court of Appeals.”

Unless it can be said that the conduct of the trial was unfair and prejudicial to the rights of the defendant, these rules seem to require affirmance. We agree with Judge comments on the sentiments expressed by the prosecutor. They were worse than “ inexact ” and his lack of candor may not be condoned. His failure to disclose the names of witnesses who it turned out were known to some of the jurors was equally deplorable; but we do not think that such conduct rendered the trial unfair or in any way prejudiced the jury’s fair and dispassionate consideration of the issues.

There is a further consideration of the evidence in this case which seems to require affirmance. If the testimony of the Coombs woman or the testimony of the Williams girl was believed by the jury, the defendant’s alibi was demonstrably false. The verdict of guilty imports such a finding. Prom this situation it follows that in order to set aside the verdict we must not only reject the testimony of James and Funicello as unworthy of belief but the testimony .of Williams and Coombs as well. We are unable to find any basis within our competence for concluding that the verdict was against the weight of the evidence.

The judgment of conviction should be affirmed.

Ch. J., Bippey and CoNway, JJ., concur Lough-baN, J.; Thaoheb, J., dissents in opinion ifi which Lewis and DesmoND, JJ., concur.

Judgment of conviction reversed, etc.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Lottie P. Linzer, Respondent, v. Max Weitzen, Appellant.
    Argued March 7, 1944;
    decided April 13, 1944.

      Abraham Greenberg for appellant.
    I. Plaintiff failed to prove a cause of action. A letter written by defendant to plaintiff’s husband after adjudication of defendant in bankruptcy and before his discharge, contained the following sentence: still hope for such improvement as to enable me to pay up to the last cent whatever its coming to yon and Lottie.” There was no promise by defendant in this sentence to pay to the plaintiff at any time*the amount of his indebtedness. Defendant merely expressed a hope that his financial condition would so improve as to enable him to pay up. (Personal Property Law, § 31; Lawrence et al. v. Harrington, 122 N. Y. 408; Herrington v. Davitt, 220 N. Y. 162; Gain v. Dunn, 243 App. Div. 849; Allen & Go. v. Ferguson, 85 U. S. 1; Scheper v. Briggs, 28 App. Div. 115; Kiernan v. Fox, 43 App. Div. 58; Mandell & Co. v. Levy, 47 Mise. 147.) II. A partial payment on account of a debt which has been discharged in bankruptcy is not sufficient to

      Aaron Nussbaum for respondent.
    I. The indebtedness of defendant to plaintiff was revived by a new promise within the Statute of Frauds. (Seymour v. Warren, 179 N. T. 1; Marks v. 226 N. Y. 138; Tioga County General Hospital v. Tidd, 164 Mise. 273; Stokes v. Sanders, 181 App. Div. 249; Lawrence et al. v. Harrington, 122 N. Y. 408; Taft v. Sergeant, 18 Barb. 320.) II. The defendant’s letter to plaintiff expressing “ a hope for such improvement as to enable me to pay up to the last cent whatever its coming to you ” revived-the indebtedness either as an independent written promise, or as the memorandum supporting his prior verbal promise. (Collier on Bankruptcy, 5th ed. p. 644.) III. The Statute of Frauds should not be so applied as to sanction the very fraud it is designed to prevent. (First Nat. Bank v. Lafayette Trust Co., 85 Mise. 341; Baum v. Holstein, 93 Mise. 268; Wagner v. Manufacturers Trust Co., 237 App. Div. 175, 261 N. Y. 699; Mutual Reserve Fund Life Ass’n v. Beatty, 93 F. 747, 35 C. 0. A. 573; Mandell Co. v. Levy, 47 Mise. 147; Collier on Bankruptcy, 5th ed., p. 217.) IV. The Statute of Frauds should be construed as a rule of reason. (Sunhy Realty Corp. v. Cross Bay Lumber Co., 165 Mise. 534; Van Valkenburg v. Croffut, 15 Hun 147; Berth v. W. G. Knapp Co., Inc., 215 App. Div. 693; Suren v. Handel, 205 App. Div. 829; Marks v. Cowdin, 226 N. Y. 138; Seymour v. Warren, 179 hi. Y. 1.)
   Lewis, J.

The. plaintiff’s action is upon three promissory notes made by the defendant, all of which were dated on or prior to May 20, 1932. The defendant was adjudicated a bankrupt on February 1, 1933, and was discharged in bankruptcy on May 29, 1935. In his schedule of liabilities filed in the bankruptcy proceeding the defendant listed a debt due the plaintiff of $7,100 which had as its basis the three promissory notes here in suit. On November 4,1933 — after the defendant’s adjudication in bankruptcy but before his discharge — he wrote the plaintiff’s husband a letter containing a statement which the plaintiff now asserts removes the bar of his discharge and makes the debt actionable. After reference to the fact that he had been the victim of adverse financial conditions under which it had become difficult for him to meet ‘ ‘ urgent needs for existence from month to month ”, the defendant’s letter states that “ things are still going from bad to worse * * At a later point in the letter the defendant * hereafter I shall first confine myself as soon and as much as possible to pay up your mother’s loss and then I still hope for such improvement as to enable me to pay up to the last cent whatever is coming to you Lottie.” (Italics supplied.)

In the present action to recover the amount due upon the three promissory notes, less $326 paid thereon by the defendant since his discharge in bankruptcy, it is the plaintiff’s submission that the italicized portion of the defendant’s letter quoted above amounted to a new promise by the defendant to pay his debt to her and served in legal effect to revive the debt.

We do not so construe the statement upon which the plaintiff relies. That statement does not lose legal effect because it was made by the defendant before his discharge in bankruptcy. “ A promise made at any time after the adjudication * * * is actionable.” (Herrington v. Davitt, 220 N. Y. 162, 167; Meyer v. Price, 250 N. Y. 370, 376, 377; Zavelo v. Reeves, 227 U. S. 625, 629-632; Everett v. Judson, 228 U. S. 474, 478, 479.) It is, however, the form of the statement — its equivocation, its lack of definition in expressing the defendant’s intention presently to assume the debt as personal obligation — Avhich makes it legally ineffectual. We read it as being nothing more than an expression by the defendant of “ hope for such improvement as will enable ” him to pay his debt to the plaintiff— that “ hope ” being expressly deferred by the defendant, according to his letter to the plaintiff’s husband, until after he has endeavored “ as much as possible to pay up your mother’s loss.” It is not enough that the defendant, by the written statement made after his adjudication in bankruptcy, acknowledged to the plaintiff the existence of an indebtedness; nor has that indebtedness been made presently actionable by the partial payments made by the defendant after his in bankruptcy. (Herrington v. Davitt, supra, p. 166; Lawrence et al. v. Harrington, 122 N. Y. 408, 413, 414.) A debt discharged in bankruptcy is revived and thereafter becomes actionable only when by an unequivocal statement in writing the debtor expresses his present intention personally to obligate himself to pay the debt. (Personal Property Law, § 31, subd. 5; Lawrence et al. v. Harrington, supra, pp. 414, 415; Herrington v. Davitt, supra, pp. 166, 167; and see Allen & Co. v. Ferguson, 85 U. S. 1, 3-5; Gain v. Dunn, 243 App. 849; Ellwell v. Cumner, 136 Mass. 102, 103, 104; Collier on Bankruptcy, 14th ed., pp. 1671-1677.)

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Lehman, Ch. J., Loughran, Conway, Desmond and Thacher, JJ., concur; Rippey, J., taking no part.

Judgments reversed, etc.


author: Thacher, J.

text:
    Hanna Gustavson, as Administratrix of the Estate of Margaret Gustavson, Deceased, Appellant and Respondent, v. Southern Boulevard Railroad Company, Respondent, and Selma Lipton, Respondent and Appellant. (Action No. 1.) Selma S. Lipton, Appellant, v. Southern Boulevard Railroad Company, Respondent, et al., Defendants. (Action No. 2.)
    Argued March 3, 1944;
    decided April 13, 1944.

      David P. Siegel for Hanna Gustavson, as administratrix, appellant and respondent.
    I. The trial court erred in charging that the plaintiff Gustavson could not recover against the defendant railroad company in the event that the jury found that the accident occurred while the automobile of the defendant Lipton was in motion at the time of the accident. (Rothschild v. Harris, 125 N. Y. S. 41; Boynton v. Boynton, 43 How. Pr. 380.) II. There was no error in the trial court’s refusal to charge that if the car was in motion, there should be a verdict in favor of Lipton as against Gustavson. (Lynch v. 155 N. T. S. 271; Golisano v. Crisafulli, 190 N. Y. S. 24; Miller v. Katz, 256 N. Y. S. 654; Matthews v. Reilly, 233 N. Y. S. 825; Rosenberg v. Third Avenue, 61 N. Y. S. 1052; Roland v. International Railway Company, 136 N. Y. S. 290; Baltimore Ohio R. R. Co. v. Long Island B, R. Co., 126 Mise. 474.) III. The trial court did not err in its ruling that counsel for the defendant Lipton should offer his summation before the summation of counsel for the railroad company. (Van.Devort v. K. & II, Evaporating Company, Inc., 252 App. JDiv. 8; Tarbell v. Howard, 162 Mise. 606; Kappa Frocks, Inc., v. Alan Fabrics Corp., 263 App. Div. 326; Crescent Puritan Laundry Company, Inc., v. McNamara, 254 App. Div. 646; Phil-or Textile Shrinking Corp. v. Monarch T. 8. Corp., 160 Mise. 610.) IV. As against Gustavson only, the trial court erred in charging’ the jury, as requested by the defendant railroad company, that the trolley car had the paramount right of way. (Southee v. Binghamton Railway Co., 168 App. Div. 605, 222 N. Y. 640; Black v. Staten Island Electric R. R. Co., 40 App. Div. 238; Frank v. Metropolitan Street R. Co., 91 App. Div. 485; Dietrich v. Brooklyn Heights Railroad Go., 123 App. Div. 604; Doctoroff v. Metropolitan Street Ry., 105 N. Y. S. 229.)

      William G. Walsh and Fred H. Rees for Selma S. Lipton, respondent and appellant.
    I. The trial court erred in charging the jury, as requested by tbe defendant railroad, that tbe trolley car bad tbe superior and paramount right of way over tbe trolley tracks at tbe point where tbe collision occurred. (Southee v. Binghamton Railway Go., 168 App. Div. 605, 222 N. Y. 640; Black v. Staten Island Electric R. R. Go., 40 App. Div. 238; Frank v. Metropolitan Street R. Go., 91 App. Div. 485; Dietrich v. Brooklyn Heights Railroad Go., 123 App. Div. 604.) II. Tbe trial court erred in refusing to charge that G-ustavson, could not recover against defendant Lipton, in tbe event that tbe jury found that tbe automobile was in motion at tbe time of tbe collision. (Lifton v. Title Guarantee & Trust Go., 263 App. Div. 3; Ehrenreich v. Berkowits, 225 App. Div. 68; Burger v. Fifth Ave. Coach Go., 249 N. Y. 583; Fuchs v. Brody, 282 N. Y. 627.) III. Tbe trial court committed prejudicial error in compelling counsel for Lipton to offer summation before tbe defendant railroad, not only because Lipton bad tbe affirmative in action No. 2, but because counsel bad tbe right to make their closing arguments in tbe reverse order to that in which they opened. (Millerd v. Thorn, 56 N. Y. 402; Parrish v. Sun Publishing Ass’n., 6 App. Div. 585; Bender v. TenviUiger, 48 App. Div. 371, 166 N. Y. 590.)

      Addison B. Scoville, Alfred T. Davison and Oliver R. Brant for Southern Boulevard Railroad Company, respondent.
    I. Tbe trial court did not err in charging in effect as requested by counsel for tbe defendant railroad company that if tbe jury found that tbe accident did not happen in tbe manner and in accordance with plaintiffs ’ theory of tbe accident as advanced by them on tbe trial, but instead that it happened in tbe manner testified to by defendant railroad company’s witnesses, their verdict should be in favor of tbe railroad company. (Lifton v. Title Guarantee & Trust Co., 263 App. Div. 3; Ehrenreich v. Berkowits, 225 App. Div. 68; Fuchs v. Brody, 282 N. Y. 627; Lannone v. Weber-McLoughlin Co., 186 App. Div. 594.) II. There was no error in tbe trial court’s charge that at tbe point where tbe accident happened, being between street intersections, tbe railroad company has the. superior or paramount right of way over its tracks and that tbe jury may consider that in taking up tbe question of liability. (O’Neil v. D. D. E. B. & B. R. R. Go. et al., 129 N. Y. 125; Moore v. Rochester Railway

      Co., 204 N. Y. 309; Union Railway Go., 243 N. Y. 249; Ward v. Clark, 232 N. Y. 19.5.) III. The trial court did not err in its ruling that counsel for Lipton should offer his summation before the summation of counsel for the railroad company. (Van Devort v. K. & R. Evaporating Company, Inc., 252 App. Div. 8; Tarbell v. Roward, 162 Mise. 606; Kappa Frocks, Inc., v. Alan Fabrics Corp., 263 App. Div. 326; Crescent Puritan Laundry Company, Inc., v. McNamara, 254 App. Div. 646; Phil-or Textile Shrinking Corp. v. Monarch T. S. Corp., 160 Mise. 610.)
   Thacher, J.

These two actions arise from a collision between a trolley car owned and operated by the defendant Railroad Company and a Ford automobile owned and operated by the appellant Lipton. Margaret Gustavson, deceased, was a passenger in the Ford automobile. Her administratrix brought suit in Action No. 1 against the Railroad Company and against Lipton to recover for wrongfully causing her death. The driver of the Ford suffered personal injuries, for which she seeks to recover against the Railroad Company in Action No. 2. These actions were consolidated for trial.

Immediately prior to the collision, which occurred on October 19, 1938, the Ford was being driven north on Southern Boulevard, Bronx, New York City, and the trolley was proceeding south on the southbound track. Witnesses called by the plaintiff Gustavson testified that the Ford turned from the east side of the Boulevard to cross the Boulevard toward the west side before the collision occurred and was not in motion when struck by the trolley car. These same witnesses testified that they heard no bell or warning and that the trolley car motorman had his head down; that he was traveling at high speed and that he had a clear view of the automobile for about 300 feet before the accident occurred. On the other hand, witnesses called by the Railroad Company testified that the Ford suddenly cut over from the east side of the Boulevard at a high rate of speed and collided with the trolley before the motorman could bring it to a stop. These witnesses controverted the testimony of the Gustavson witnesses to the effect that the Ford was standing still immediately before the collision.

The issues both eases were submitted to the jury and the jury found a verdict in favor, of the Eailroad Company in each case and-a verdict in favor of the plaintiff against the defendant Lipton in Action No. 1 for $12,500.

A judgment entered upon these verdicts was affirmed in the Appellate Division, one justice dissenting and voting for reversal of the judgment insofar as it dismissed the complaint of plaintiff Gustavson against defendant Eailroad Company, and for a new trial, and for affirmance of the judgment in all other respects.

The plaintiff Gustavson took exception to the following instruction to the jury:

“ Mr. Mayo [counsel for defendant Eailroad Company]: I have one request, if your Honor pleases. I think your Honor charged the jury that if they found this accident happened as testified to by the motorman and the defendant’s witnesses, their verdict must be for the defendant railroad company in the Lipton case.

“ I ask your Honor to charge the jury that in view of the fact that this plaintiff — both" of these plaintiffs have come in on the theory that this automobile was standing still on the track, and the car came down from some distance and hit it while it was standing there, that if they find that this accident did not happen that way, but that it happened by reason of this automobile driving north and turning out of traffic, and in motion, running into the trolley car while in motion — that if it happened in that way their verdict must be for the defendant railroad company in both of these cases.

The Court: Without negligence of the I charge. I didn’t mean to limit it in one case.

“ Mr. Mayo: I respectfully except to your Honor’s saying ‘ without negligence on the part of the motorman,’ because the theory of the plaintiffs is that they were standing still. And I ask your Honor to charge to the jury that if, a,s a matter of fact, this accident was caused by reason of a collision between this automobile and the trolley ear, and that the automobile was actually in motion, moving north, at the time the two came together, that under the pleadings and the proof in this case offered by the plaintiff, their verdict must be for the defendant.

“ The Courts I misunderstood you. I so charge. They have come in here on a different theory.”

The defendant Railroad Company and the defendant Lipton contend that these instructions were correct and that, the jury having found that the Ford was in motion at the time of impact, plaintiff was not entitled to recover against either of them. We cannot agree that the mandatory instruction to the jury to find for the defendant Railroad Company, if the Ford car was in motion at the time of impact, was justified in view of a study of the evidence in this ease. Undoubtedly there are where such an instruction may be proper but only where from the plaintiff’s proofs a factor essential to a finding of negligence is open to rejection by the jury. Then, as in any other case, without that element the facts found by the jury would not be sufficient to support the verdict against the defendant, and the court may, and properly should, so charge. This was the situation in Burger v. Fifth Avenue Coach Co. (249 N. Y. 583). There the question was whether the boy who was killed was struck while standing on the curb by an overhanging part of a bus negligently driven too close to the curb, or whether he was struck after stepping into the street. In this situation the court charged that, u unless the plaintiff has established the fact that the bus struck this boy while he ivas on the island platform, the plaintiff has failed to prove the negligence of the defendant.” (222 App. Div. 187, 188.) This court sustained the instruction, holding that there was no sufficient basis for a finding of the defendant’s negligence unless the plaintiff’s intestate when struck by the defendant’s car was standing on the curb Similarly, in Fuchs v. Brody (282 N. Y. 627) plaintiff was crossing 96th Street from south to north in the middle of the block and offered testimony that she was struck by the defendant’s automobile south of the white line in the middle of the street. In that situation it was proper to charge that the plaintiff must recover on her own theory of the case or not at all, and that, if the jury found that the accident happened north of the white line, their verdict should be for the defendant for the same reason as that given by this court in the Burger case (supra) because without such a finding there could have been no sufficient evidence of negligence on the part of the defendant or freedom from negligence on the part of the plaintiff. Crossing the street in the mid-die of the block and walking beyond the white line, without seeing the defendant’s automobile, would in itself have destroyed the plaintiff’s asserted cause of action. There is no inconsistency between such decisions and decisions in which such instructions to a jury have been held erroneous. (Barker v. Paulson, 116 N. Y. 660; Imbriale v. Skidmore, 252 App. Div. 884; Tumulty v. New York, New Haven & H. R. R. Co., 224 App. Div. 131; Burd v. Bleischer, 208 App. Div. 499.)

In this case there was ample evidence to support a jury’s verdict that negligence in the operation of the trolley was a contributing cause of the intestate’s death. Whether or not the motor car was moving at the time of collision was not in any sense determinative of this question, and we accordingly hold that the requested charge was error which may well have deprived plaintiff Gustavson of a verdict against the Railroad Company.

Examination of the record fails to disclose any merit in Lipton ’s appeal. Lipton took no exception to the mandatory instruction discussed above but, on the contrary, approved this instruction, requested the court to charge that Gustavson was not entitled to a verdict against either defendant if the Ford car was in motion at the time of impact and took an exception to the court’s refusal of this request. Since the charge requested was plainly erroneous under the circumstances of this case, the ■exception is without merit. Nor do we find merit in any other ■.exception taken in behalf of Lipton.

The judgments, insofar as they dismiss the complaint of Hanna Gustavson, as administratrix, et cetera, against the defendant Southern Boulevard Railroad Company, should be reversed and a new trial granted, with costs against said defendant to abide the event; in all other respects the judgments should be affirmed, with costs against appellant Lipton.

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


author: LotjghraN, J.

text:
    Martin Manion, Respondent, v. Peoples Bank of Johnstown, N. Y., as Trustee under the Will of Hoel S. McElwain, Deceased, Appellant, and Rose Manion, Defendant-Respondent.
    Argued March 7, 1944;
    decided April 13, 1944.

      A. II. Pulsifer for appellant.
    I. The testatrix gave and the life tenant possessed an absolute power of disposition for his own benefit. (Wells et al. v. Wells et al., 88 N. Y. 323; Matter of Drury, 249 N. Y. 154; Matter of Horner, 237 N. Y. 489; Matter of Gallien, 247 N. Y. 195.) II. The mortgage to the bank is valid under section 149 of the Peal Property Law. (Farmers’ Loan & Trust Go. v. Kip, 192 N. Y. 266; Stafford v. Washburn, 145 App. Div. 784; Matter of Davies, 242 N. Y. 196; Terry et al. v. Wiggins et al., 47 N. Y. 512; Hasbrouck v. Knob-lauch, 130 App. Div. 378; Barr v. Howell, 85 Mise. 330; Matter of Shelly, 159 Mise. 23; Matter of Hesler,-166 Mise. 250, 250 App. Div. 803.) III. The power of disposition is not accompanied by a trust. (Crooke et al. v. County of Kings et al., 97 N. Y. 421; Gutting v. Cutting et al., 86 N. Y. 522; Hasbrouck v. Knoblauch, 130 App. Div. 378; Dudley v. People’s Trust Go., 57 Mise. 230; Rose v. Hatch et al., 125 N. Y. 427; Woodivard v. James, 115 N. Y. 346; Scheer' v. Long Island Railroad Go., 127 App. Div. 267.)

      L. Victor Harrison and S. G. Rosenthal for respondent.
    I. The testatrix neither gave nor intended to give an absolute power of disposition unaccompanied by a trust within the meaning of the statutes. II. The case does not come within the purview of section 149, et seq., of the Peal Property Law. (Rose v. Hatch et al., 125 N. Y. 427; Higgins v. Downs, 101 App. Div. 119; Ackerman v. Gorton, 67 N. Y. 63; Stafford v. Washburn, 145 App. Div. 784; Blanchard v. Blanchard, 4 Ilun 287, 70 N. Y. 615; Matter of Glickman, 116 Mise. 540; Terry et al. v. Wig gin et al., 47 N. Y. 512; Matter of Enright, 109 Mise. 337; Matter of Seivert, 246 App. Div. 457; Thomas v. Wolford, 49 Hun 145; Seaward v. Davis, 198 N. Y. 415; Kendall v. Case, 84 Hun 124; Mitchell v. Van Allen, 75 App. Div. 297; Matter of Skinner, 81 App. Div. 449, 180 N. Y. 515; Leggett v. Firth, 132 N. Y. 7 ; Matter of Bielby, 91 Mise. 355; Henderson v. Blackburn, 104 III. 227.) III. The bank was not an innocent bona fide third party without notice and took only snch estate as Michael and Bose Manion individually could convey. (Hairston v. Dobbs, 80 Ala. 589; Goodin v. Vaughn, 14 Gratt. [55 Va.] 102; Davis v. Howcott, 21 N. C. 460; Griswold v. Perry, 7 Lans. 98; Kentucky Bank v. Schuylkill Bank, 1 Pars. Eq. Cas. [Pa.] 180; Tarpy v. Lexington B. Go., 154 Ky. 345, 24 C. J. 185.) IV. Michael Manion⅛ power of disposition did not include the power to mortgage the fee. (Heiseman v. Loenstein, 113 Ark. 404; Williamson v. Grider, 97 Ark. 588.)
   LotjghraN, J.

Julia Manion died August 10, 1920, a resident of the city of Johnstown, county of Pulton. Sbe was survived by two sons, Michael and Martin. Her last will and testament was admitted to probate by the Surrogate’s Court of that county on October 18,1920. The material words thereof are After all my lawful debts are paid and discharged, I give, devise and bequeath unto my son, Michael Manion, of Johnstown, N. Y., all that certain lot, piece or parcel of land situated in the City of Johnstown, in the County of Pulton, and State of New York, known as Lot No. 210, on the east side of Meadow Street ⅜ ⅜ ⅜ to have and to hold the same unto him, the said Michael Manion, during his natural life, with the absolute power of disposition, with the provision, that if the said Michael Manion marries and has issue, that the title to the aforesaid property shall pass to him in Pee Simple; if he marries and has no issue or descendants of such issue, and dies leaving a widow, his widow shall be entitled to an estate in the aforesaid property equivalent to what her dower rights would have been had the title of the said Michael Manion, been in fee. Should the aforesaid Michael Manion die leaving no widow or descendants, or a widow but no descendants, the title to the said lot No. 210 shall pass in Pee Simple to my son Martin Manion if living. ’ ’

On February 8, 1935, Michael Manion and Bose Manion, his wife, gave a bond for $1,500 to The Peoples Bank of Johnstown, and as security therefor delivered to the bank a mortgage on the parcel of real property that had been devised by the above words of the testatrix. On January 11, 1942, Michael Manion died leaving no issue or descendants. Bose Manion, his widow, and his brother Martin Manion survived him.

Thereupon this action was brought by Martin Manion against the bank and Rose Manion for a judgment that would declare the extent of the lien of the mortgage which the hank had taken from Michael Manion and Rose Manion. Special Term said: ‘ ‘ It was clearly not the intention of testatrix ,to give Michael a beneficial power of sale. Therefore, the power in question' was a general but not a beneficial power; and not being a beneficial power was a power in trust ”. Upon that construction, the power did not authorize any conveyance by Michael Manion for his own use, and in that view the mortgage to the bank was a lien upon no more than the dower interest that had accrued to Rose Manion under the foregoing testamentary text. The Appellate Division was of the same opinion.

As appellant here, the mortgagee-bank invokes section 149 of the Real Property Law. It is thereby provided: “ Where an absolute power of disposition, not accompanied by a trust, is given to the owner of a particular estate for life or for years, such estate is changed into a fee absolute in respect to the rights of creditors, purchasers and incumbrancers, but subject to any future estates limited thereon, in case the power of absolute disposition is not executed, and the property is not sold for the satisfaction of debts.”

The power granted to Michael Manion by the testatrix was plainly a general power as the courts below have said. Whether there was an accompanying trust must be determined in accordance with section 137 of the Real Property Law. It is thereby provided: “ A general power is in trust, where any person or class of persons, other than the grantee of the power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from its execution.” The will made no designation of any person other than Michael Manion as entitled to any benefit from the general power thereby granted to him; and, since the grant thereof ran to him individually, no contradictory intent was shown by the fact of his appointment by the testatrix as her sole executor. (Cf. Sweeney et al. v. Warren et al., 127 N. Y. 426, 434; Cotton v. Burkelman, 142 N. Y. 160, 163, 164.) In a word, the present power was not a power in trust.

The life estate the testatrix to Michael Manion was to he held by him — so her will said — with the ‘ ‘ absolute power of disposition.” The quoted phrase presumably was patterned after section 149 of the Real Property Law, so as to bring about the result dictated by that section. For an answer to this seemingly conclusive circumstance, the Special Term justice declared his disbelief in the ability of the testatrix to conceive of “ so subtle a means of stating her intention ” in a testamentary instrument on which she made a mark as a substitute for a signature. This reasoning, we believe, was inadmissible. Courts are not at liberty to inquire as to a testator’s understanding or appreciation of the legal implications of words that were selected for him by a draftsman of his will. (See Matter of Watson, 262 N. Y. 284, 293; Dwight v. Fancher, 245 N. Y. 71; Matter of Gertie E. Webb, 122 Misc. 129, 135, 136; 208 App. Div. 793.)

Our conclusion is that the mortgage to the bank is a lien upon the fee of the premises described therein.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Judgments reversed, etc.


author: CoNWay, J.

text:
    The People of the State of New York, Respondent, Clara Harcq, Appellant.
    Submitted January 14, 1944;
    decided April 13, 1944.

      Sidney I. Prager for appellant.
    Tbe County Court bad tbe power to place tbe defendant-appellant on probation and erroneously held that it lacked such power. (Code Crim. Pro. § 764.)

      Edward J. Neary, District Attorney (Philip Huntington of counsel), for respondent.
    Upon tbe appeal from tbe judgment of conviction tbe County Court, as an appellate court, bad no power to suspend execution of sentence and, or, place tbe defendant-appellant on probation. (People v. MacKenzie, 69 Mise. 540; People v. Finucan, 151 App. Div. 92; People v. Dinehart, 155 App. Div. 687; People v. Maher, 92 Mise. 50.)
   CoNWay, J.

Tbe defendant was convicted of tbe crime of assault in tbe third degree by a city court judge of tbe City of Long Beacb, Nassau County, sitting as a court of special sessions. Tbe defendant was fined $500 (with provision for service of 500 days in tbe Nassau County jail in default thereof) and sentenced to serve 60 days imprisonment in tbe Nassau County jail. Upon appeal to tbe County Court of Nassau County, tbe learned County Judge was of tbe opinion that be was without tbe power, under section 764 of tbe Code of Criminal Procedure, to modify tbe sentence so as to suspend 60-day sentence or the execution thereof and to place the defendant on probation. The County Judge did, however, modify the judgment of conviction by eliminating the provision that the defendant serve 500 days in the Nassau County jail in default of payment of the fine and limited the sentence to imprisonment for 60 days. With that modification the judgment was affirmed. Appeal by defendant was allowed to this court in order that it might be determined whether the ruling was correct that it was not within the power of the appellate court to suspend the 60-day sentence of defendant or its execution.

Code of Criminal Procedure, section 764, reads as follows: “ After hearing the appeal the court must give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants, and may render the judgment which the court below should have rendered, or may, according to the justice of the case affirm or reverse the judgment, in whole or in part, as to all or any of the defendants, if there be more than one, or may order a new trial, or may modify the sentence.” (Emphasis supplied.)

Appellant relies upon the italicized portion of the language of the statute. The People, on the other hand, rely upon People v. Maher (92 Misc. 50, 52, 53), wherein it was said: “ * * the statute defining the appellate jurisdiction of this court is not broad enough to afford appellant the relief which she seeks. This relief is either an unconditional release from the institution where she is confined under a partially executed sentence or a release on a suspension of sentence by this court and a placing on probation. The law provides that upon the hearing of an appeal this court is to give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of a defendant and that it may render the judgment which the court below should have rendered, or according to the justice of the case affirm or reverse the judgment in whole or in part or order a new trial either in the court below or before it or modify the sentence. This court cannot, in the exercise of the power to render the judgment which the court below should have rendered, suspend sentence and place a defendant on probation. A suspending of sentence and a placing on probation are not the rendition of judgment. Such action is the deferring of judgment. It can only suspend sentence and place on probation where a new trial can be and is bad before it. ’ ’

That case (decided in 1915) is the only case called to our attention wbicb directly construes the language employed in the statute under consideration.

Section 2188 of the Penal Law provides, in part: “ The court, judge, justice or magistrate authorized to impose sentence upon conviction may, except as otherwise provided in this section, (1) suspend sentence, or (2) may impose sentence and suspend the execution of the judgment # * (Italics supplied.)

In People ex rel. Woodin v. Ottaway (247 N. Y. 493) the County Court Judge sentenced the defendants to a State prison for the crime of assault in the second degree. After affirmance by the Appellate Division, the County Court suspended the execution of the judgment on condition that the defendants pay. a fine. An application was subsequently made to the Supreme Court by the District Attorney for an order of mandamus directed to the County Judge, commanding him to vacate the order of resentence. The application was denied, and the order denying it was affirmed by the Appellate Division “ a matter of law and not in the exercise of any discretion ”. (222 App. Div. 711.) Thereafter the Appellate Division granted leave to appeal to this court. This court affirming, in a per curiam opinion, said: “ In the view of a majority of this court, the mandate of the County Court was not a revocation of the sentence previously imposed and the imposition of a new one. It was a suspension of the execution of the judgment upon compliance by the defendants with a condition which they might accept or reject ” (p. 495).

It was further said (pp. 496-7): “ Jurisdiction was not lost though the appeal to the Appellate Division and the affirmance by that court before the order for a stay was made. Section 546 of the Criminal Code does not touch the situation. All that it does is to confer power on appellate courts to make such directions as may be necessary in view of changed conditions to carry a judgment into effect, as, e.g., where the date fixed for the execution of a death sentence has expired pending an appeal. There was no thought to invest them ivith jurisdiction to determine whether sentence should he suspended or a defendant placed upon probation. This conclusion becomes the moré obvious when we consider a few dates. Section'546 goes back in its present form to 1882. The power to suspend sentence did not have recognition in any statute till 1893 (L. 1893, ch. 279, amending Penal Code, § 12; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 294). Not till 1918 was there a statute giving power to impose a sentence in the first instance, and thereafter stay the judgment (L. 1918, ch. 457; cf. L. 1913, ch. 125, amending Code Crim. Pro. § 517, and superseding People v. Flaherty, 126 App. Div. 65). Obviously section 546 was framed alio intuitu. The problem might wear another aspect if the discretion to suspend or stay were subject to review upon appeal. There is no contention that it is. A judgment of affirmance either by this court or by the Appellate Division is not an expression of opinion as to the propriety of staying or suspending the execution of the sentence. There is no jurisdiction in either court to express such an opinion with any authoritative force. The Appellate Division can indeed reduce the sentence, but 'never below the minimum penalty provided by law Crim. Pro. § 543). The power to stay execution, like the power to revoke the stay, or to place a defendant on probation, is confided to the court of original jurisdiction, which may be controlled in the exercise of its discretion by information dehors the record. It i& not shorn of the power by an intermediate appeal.”

That case was decided in 1928, twenty-one years after the amendment to section 750 infra. While it had reference to sections 543 and 546 of the Code of Criminal Procedure, it would appear to be equally applicable here.

Did the Legislature by the employment of the words, may render the judgment which the court below should have rendered ” (§764, supra), confer upon an appellate court the power to suspend sentence where the court below has not done so but where the appellate court is of the opinion that the court below should have suspended the sentence? We think not. Is the suspension of a judgment a rendition of a judgment? We think not. In The People v. Bork (78 N. Y. 346, 350) this court said: “ There was in the Oyer and Terminer a conviction, but sentence was suspended. There was therefore in that court no judgment, because the sentence is the judgment ”. “ The judgment in a criminal case upon conviction is the sentence of the court. ” (People v. Bradner, 107 N. Y. 1, 11.) “ The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities, remain and become operative when judgment is rendered.” (People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 294.) “ * * * in a criminal case the sentence of the court as minuted in the clerk’s minutes is the judgment. Hence, if sentence be suspended, that means no judgment is passed ⅜ * (People v. Boehm, 176 App. Div. 401, 402). (See, also, People v. Fabian, 192 N. Y. 443, 453; People ex rel. La Placa v. Murphy, 277 N. Y. 581.)

Further indication that a suspension of a judgment is not a judgment is found in the fact that to permit an appeal in a ease of a suspended judgment such as has been discussed it was necessary for the Legislature specifically to provide therefor in section 750 of the Code of Criminal Procedure (1907). That section reads as follows: “ An appeal may be taken as provided, by section five hundred and twenty, and for the purposes of an appeal a conviction for a criminal offense shall be deemed a final judgment although sentence shall have been suspended by the court in which the trial was had or otherwise suspended or stayed.”

The judgment should be affirmed.

Lehman, Ch. J., Lotjghran, Rippey, Lewis, Desmond and Thacheb, JJ., concur.

Judgment affirmed.


author: Lehman, Cb. J.

text:
    Dolcizia Pagano, Appellant, v. Leo Arnstein, as Commissioner of Welfare of the City of New York Public Welfare District, Respondent.
    Argued February 24, 1944;
    decided April 13, 1944.

      G. Elmer Spedick and Arthur L. Reuter for appellant.
    The judgment in the Schaeffler case does not bar this action. (Jasper v. Rosinski, 228 N. T. 349; Lien Co. v. 213 N. Y. 9; Merchants’ Rank v. Thomson et al., 55 N. Y. 11; Emigrant Industrial Savings Ramie v. Goldman, 75 N. Y. 127; Second National Rank of Gooperstown v. Calvert, 152 Mise. 884; Mal-loney v. Koran, 49 N. Y. Ill; Schuylkill Fuel Gorp. v. Nieberg Realty Corp., 250 N. Y. 304; Rrown v. Gallaudet, 80 N. Y. 413; Rosenberg v. Slotchin, 181 App. Div.'137; Robinson v. Whitaker Nos. 1-4, 205 App. Div. 286; Stannard v, Kubbell, 123 N. Y. 520.)

      Ignatius M. Wükinson, Corporation Counsel (Louis M. Wein-traub, Julius Isaacs and Sol W. Aronson of counsel), for respondent.
    Appellant is barred in this action by tbe rule of res judicata since tbe same facts upon which relief is sought were pleaded in a prior action between tbe same parties. Tbe same issues are now involved and tbe relief now sought would impair or destroy tbe judgment rendered in favor of respondent in the prior action. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. T. 304; Hellstern v. Hellstern, 279 N. T. 327; Pray et al. v. Hegeman et al., 98 N. T. 351; Butterly v. Maribert Realty Corp., 234 App. Div. 424, 260 N. T. 554; Elna Realty Co., Inc., v. Mamaquarro Apartments Corp., 234 App. Div. 105; Jordan v. Van Epps, 85 N. T. 427; 1 Wiltsie on Mortgage Foreclosures, 5th ed., § 148.)
   Lehman, Cb. J.

Tbe complaint in this action has been dismissed on tbe ground that a prior adjudication conclusively bars tbe plaintiff from asserting tbe cause of action pleaded in tbe complaint. Tbe sole question presented upon this appeal is whether tbe matter pleaded in tbe complaint has been litigated or could have been litigated in tbe prior action and “ tbe substance of tbe rights or interests established in tbe first action will be destroyed or impaired by tbe prosecution of tbe second. ’ ’ (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304, 306, 307, 308.)

We state briefly tbe facts alleged in tbe complaint. In 1941 a judgment of foreclosure and sale was made and entered in an action entitled Scott v. Schaeffler brought by Marie Kraus Scott to foreclose a mortgage executed in 1898 upon real property in Queens County. At tbe sale at public auction held pursuant to tbe judgment, Marie Kraus Scott was tbe successful bidder and tbe referee conveyed tbe property to her by deed dated March 6, 1942. Thereafter tbe property was purchased by tbe plaintiff from Marie Kraus Scott, who conveyed it to tbe plaintiff by “ full covenant and warranty deed ” dated July 2, 1942. Tbe City of New York was named as a party defendant in tbe foreclosure action of Scott v. Schaeffler, and tbe complaint in that action alleged that tbe plaintiff Scott “ bad been advised by tbe Department of Welfare of tbe City of New York that said Department held a bond and mortgage affecting the said premises in the sum of $2,100.” The City of New York did not appear in that action. The gist of the asserted cause of action is that in spite of the judgment in that action the defendant Commissioner of Welfare of the City of New York Welfare District claims that the mortgage made to his predecessor, as hereinabove alleged, is a valid lien upon the premises ’ ’ and that he has a lien upon said mortgaged premises or some part thereof, “ which interest or claim, if any, has accrued subsequent to the lien of the mortgage,” executed in 1898, “ and is subordinate thereunto.”

Upon these allegations the plaintiff prays that the mortgage executed in 1898 and foreclosed in 1942 “ be revived, and plaintiff be adjudged and decreed to be the owner and holder thereof, and that plaintiff have judgment that the defendant and all persons claiming under him * * # be barred and foreclosed of all right, claim, lien, and equity of redemption in the said mortgaged premises The defendant moved pursuant to rule 107, subdivision 5, of the Rules of Civil Practice for judgment dismissing the complaint on the ground that “ there is an existing final judgment or decree of a court of competent jurisdiction rendered on the merits determining the same cause of action between the parties.” The judgment relied upon as a conclusive prior adjudication was rendered in an action entitled Arnstein, as Commissioner, etc. v. Schaeffler et al. in April, 1943, in which Dolcizia Pagano, the plaintiff appellant in the action which is the subject of this appeal, was the sole defendant who was served. Hereinafter, in the interest of brevity and clarity, we refer to that action as the Arnstein v. Pagano action.

The action of Arnstein v. Pagano was brought to foreclose the same mortgage owned by the Commissioner of Welfare of the City of New York Welfare District which the appellant Pagano now claims is subordinate to the lien of the mortgage which was foreclosed in the-action of Scott v. Schaeffler. The complaint in the action of Arnstein v. Pagano alleges the same chain of title in the appellant Pagano as she alleges in the complaint which has been dismissed, viz., the deed to Scott dated March 6, 1942, and the deed by Scott to Pagano dated July 2, 1942. The appellant Pagano, as the sole defendant in that action, interposed an answer in which she alleged as a defense the same facts as she now alleges as plaintiff in the complaint which has been dismissed, but she did not in that answer ask, as she now does, for an affirmative judgment that the mortgage executed in 1898 and foreclosed in,the action of Scott v. Schaeffler he “ revived that she be subrogated to the rights of Mrs. Scott as owner of the premises and that she be permitted to foreclose the mortgage so revived.

The pleadings in the action of Arnstein v. Pagano put in issue the question whether the interest or lien ” of Mrs. Pagano was subordinate to the lien of the Commissioner of Welfare. That issue was determined against Mrs. Pagano by a finding of the court that the “ defendants have or claim to have some interest or a lien upon the said mortgaged premises or some part thereof, which interest or lien, if any, has accrued1 subsequent to the lien of the said [plaintiff’s] mortgage and is subordinate to the plaintiff’s lien and rights.” Accordingly the judgment provides that the “ defendant, Dolcizia Pagano, and all persons claiming under her, * ⅜ # be and they hereby are forever barred and foreclosed of all right, claim, lien, title, interest and equity of redemption of the premises, and each and every part thereof.”

The motion for judgment dismissing the complaint in the action brought by Mrs. Pagano does not challenge the sufficiency of the facts alleged in the complaint to constitute a cáuse of action (cf. Moulton v. Cornish, 138 N. Y. 133, 145; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 292); nor does the motion challenge the truth of these allegations. The sole question presented upon that motion is whether Mrs. Pagano may bring an action to bar and foreclose the lien of the mortgage owned by the Commissioner of Welfare after an adjudication in a prior action that her “ interest or lien ” in the premises is “ subordinate ” to the lien of the mortgage the Commissioner of Welfare and that she is “ forever barred and foreclosed of all right, claim, lien, title, interest and equity of redemption of the premises and each and every part thereof.”

Whether the “ interest or lien ” acquired by Mrs. Pagano under the deed from Mrs. Scott is subordinate to the lien of the' mortgage of the Commissioner of Welfare is the question which Mrs. Pagano litigated in that action. The adjudication against her may not be questioned by her in a collateral action. (Goebel v. Iffla, 111 N. Y. 170; Tax Lien Co. v. Schultze, 213. N. Y. 9.) The judgment in the prior action is conclusive upon the parties not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first.” (Schuylkill Fuel Corp. v. Nieberg Realty Corp., supra, p. 306.) The appellant, Mrs. Pagano, may challenge the prior judgment upon the appeal which we are informed is pending in the Appellate Division. She may there urge that the lien of the mortgage of the Commissioner of Welfare was foreclosed and barred by the judgment of foreclosure of a prior mortgage in the action of Scott v. Schaeffler to which the City of New Tort was a party. Perhaps she may even urge there that if the lien of the Commissioner was not barred by the judgment in the action of Scott v. Schaeffler, yet the facts alleged in the answer of Mrs. Pagano in,the action of Arnstein v. Pagano established as an “ equitable defense ” a right to. the equitable relief which she seeks by independent action, though in Arnstein v. Pagano she have failed to ask such relief expressly. (Cf. Susquehanna S. S. Co. v. Andersen & Co., 239 N. Y. 285, 290 et seq.) These are matters which we may not consider and decide now.

Nor may we consider whether Mrs. Pagano may still ask the court at Special Term to exercise its inherent power to vacate the judgment in Arnstein v. Pagano “ for sufficient reason and in the interests of substantial justice ” in order to give Mrs. Pagano opportunity to ask in that action for the relief which she is barred from asking in a later action. (Cf. Matter of Automatic Chain Co., 134 App. Div. 863, 866, 198 N. Y. In Matter of City of Buffalo, 78 N. Y. 362, 370; Hatch et al. v. Central National Bank, 78 N. Y. 487; Vanderbilt v. Schreyer, 81 N. Y. 646; Fuhrmann v. Fanroth, 254 N. Y. 479, 482, 484.) We decide only that the courts below correctly held that so long as the judgment in- Arnstein v. Pagano remains in force it is a conclusive adjudication upon the merits determining the cause of action pleaded by Mrs. Pagano in the subsequent action.

The judgment should be affirmed, without costs.

Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur ; Thacher, J., taking no part.

Judgment affirmed.


author: DesmoNd, J. LehmaN, Ch. J.

text:
    Argued February 23, 1944;
    decided April 13, 1944.

      Jos. G. Blum and Joseph Stein for appellant.
    I. The authority granted by treaty to the Consul-General of the Republic of Poland to appear for heirs and legatees in the administration and distribution of estates embraces the right to appear in behalf of a surviving spouse. (Bocea v. Thompson, 223 U. S. 317; Matter of D’Adamo, 212 N. T. 214.) II. Consular representatives are ¡authorized, by virtue of their office, to represent the interests of absent, minor or incompetent nationals of their state within their consular districts in proceedings before the courts or other authorities of the receiving state, and to initiate and defend actions, and in general to do what the individual himself might do to defend his interests. (The Anne, 3 Wheat. 435; The Antelope, 10 Wheat. 66; The Adolph, Curtis 87 Fed. Cas. 786; Robson v. The Huntress, Fed. Cas. 11971; Bocea v. Thompson, 223 U. S. 317; Matter of D’Adamo, 212 N. Y. 214; Matter of Bristow, 118 N. IT. S. 686; The Bello Gorrunes, 6 Wheat. [19 IT. S.] 152; McDonough v. Dannery, 3 Dallas 188; Cohens v. Virginia, 1821, 6 Wheat. 264; Hamilton v. Erie R. R. Co., 219 N. Y. 343; Hauen-stein v. Lynham, 100 IT. S. 483; Geofroy v. Riggs, 133 IT. S. 258; Tucker v. Aleccandroff, 183 IT. S. 424; Asalmra v. Seattle, 265 IT. S. 332; Jordan v. Tashiro, 278 IT. S. 123; Nielsen v. Johnson, 279 IT. S. 47; Matter of Lobrasciano, 38 Mise. 415.) III. Section 47c of the Decedent Estate Law, added by chapter 181 of the Laws of 1938, specifically includes a surviving spouse in the category of heirs,” “ heirs at law,” 11 next of kin ” and “ distributees.” (Matter of Koch, 282 N. Y. 462.) IV.. Since, by reason of the invasion and occupation of the Republic of Poland, .the surviving spouse, a resident and national of that country, was incapable of exercising her right of election, its exercise in her behalf by the Consul General of the Republic of Poland was valid and in accord with the spirit and purpose of the statute. (People v. Ryan, 274 N. Y. 149; Matter of McGarry, 155 Mise. 467, 245 App. Div. 834, 270 N. Y. 514; American Historical Society v. Glenn, 248 N. Y. 445; People v. Schweinler, 214 N. Y. 395; Matter of Altman, 160 Mise. 812; Brustein v. New Amsterdam Casualty Go., 255 N. Y. 137; Jarl Go. v. Village of Groton-on-Hudson, 262 N. Y. 551; Matter of Byrnes, 141 Mise. 346, 235 App. Div. 782, 260 N. Y. 465; Matter of Blumenstiel, 248 App. Div. 533; Harding v. Harding, 140 Ky. 277; Friedman v. Andrews, 293 Mass. 566; Gastleman v. Gastleman, 184 Mo. 432; Matter of Hills, 264 N. T. 349; Matter of Brown, 212 App. Div. 677, 240 N. Y. 646; Matter of Donnelly, 172 Mise. 107; Matter of Slmerys, N. Y. L. J. October 17,1940, p. 1132; Anderson v. N. V. Transandino Handelmaatschappij, 289 N. Y. 9; Matter of Celensa’s Estate, 308 Penn. St. 186.)

      Thomas J. Snee for respondent.
    I. Tbe right of election granted to a surviving spouse by section 18 of the Decedent’s Estate Law is a personal right. (Matter of Brotvn, 212 App. Div. 677; Amherst College v. Bitch, 151 N. Y. 282; Matter of Hills, 264 N. Y. 349; Gamardella v. Schwarts, 126 App. Div. 334; Flynn v. McDermott, 183 N. Y. 62; Matter of Altman, 160 Mise. 812.) II. There was no proof offered by the Consul-General that the surviving spouse was alive when the notice of election was filed. (Matter of Coffin, 152 Mise. 619.) III. The right of election is a personal right to the surviving spouse and ends with death. (Flynn v. McDermott, 183 N. Y. 62; Youngs v. Goodman, 240 N. Y. 470.)
   DesmoNd, J.

We gave permission for this appeal so that we might pass on this question: can the Consul-General of the Eepublic of Poland, under the existing treaty between his government and the government of the United States, and without direct authorization by, or communication from, his national who resides in Poland, validly exercise on her behalf the right accorded her by section 18 of the Decedent Estate Law, to “ take against the Will ” of her late husband? The will’s only provision for the absent wife is a legacy of $100. Since the net estate amounts to about $8,500, it is obviously to her advantage that there be protection of her statutory right to take, in contravention of the will, one third of her husband’s net estate. The grant of authority on which the Consul-General relies, in his effort to furnish such protection, is article XXIV of the 1931 Treaty of Friendship, Commerce and Consular Eights ” between Poland and the United States, reading as follows: Article XXIV: A consular officer of either High Contracting Party shall, within his district, have the right to appear personally or by delegate in all matters concerning the administration and distribution of the estate of a deceased person ■under the jurisdiction of the local authorities for all such heirs or legatees in said estate, either minors or adults, as may be non-residents and nationals of the country represented by the said consular officer with the same effect as if he held their power of attorney to represent them unless such heirs or legatees themselves have appeared either in person or by duly authorized representative.”

The Surrogate agreed with the Consul-G-eneral’s assertion that the latter is, under this treaty and under general international law, an attorney in fact for his national. He ruled, however, that the widow was not, in these circumstances, one of the 11 heirs or legatees ’ to whom the treaty refers and ruled further that any exercise of the personal right of election ” granted to the widow by section 18, requires personal action by the benefited individual

In arriving at the meaning of the treaty we are bound to remember that it is the supreme law of the land (U. S. Const., article VI, Geofroy v. Riggs, 133 U. S. 258), that its words are to be taken liberally in the fight of evident purposes (Hauenstein v. Lynham, 100 U. S. 483) and that, since the pact is done in counterparts, one in each language, little use .can be made of local technical definitions of words. (United States v. Percheman, 7 Pet. 51.) When two constructions of a treaty are admissible, one restrictive of the rights that may be claimed under it and the other liberal, the latter is always to be preferred. (Hauenstein v. Lynham, supra.)This Court would not readily lean to favor a restricted construction of language, as applied to the provisions of a treaty, which always combines the characteristics of a contract, as well as a law ” (The Bello Corrunes, 6 Wheat. 152, 171). Those settled rules of construction forbid the employment of so restricted a meaning as was given below to the words “ heirs or legatees ”. While these are words of art when found in certain settings, they take on in an international treaty the broader intendments which the purposes of the “ High Contracting Parties ” require. It is not permissible, therefore, to exclude Mrs. Zalewski, as did the Surrogate, from the rank of “ heir ” on the ground that the case is not one of intestate distribution or to refuse her the protection due a “ legatee ” because her asserted right to take one third is not based on anything in the will. In truth, she is, even under local meanings of the terms, both an “ heir ” (by statutory definition, Decedent Estate Law, § 47-c) and a “ legatee ” (since the will contains a small bequest to her). This treaty will be receiving something less than “ liberal ” treatment if she is held not to be one of the persons for whom the Consul-G-eneral may intervene in our Surrogate’s courts.

The narrow meaning given below to the words of the Statute: “ personal right of election ”, must be discarded, also. The distinguished Commission which drafted section 18 of the Decedent Estate Law gave us a valuable clue to the meaning of “ personal right of election ” when it informed the Legislature (see 1928 report, note to § 18) that “ Such right of election if not previously exercised will be lost upon the death of the surviving spouse and will not pass to his or her executor or administrator.” This is similar,” wrote the Commission, to the personal right of the widow to elect against a testamentary provision in lieu of dower, which right ends upon her death ” (citing Flynn v. McDermott, 183 N. Y. 62; Camardella v. Schwartz, 126 App. Div. 334; Youngs v. Goodman, 240 N. Y. 470). We find no basis for a holding that “ personal ” means anything more in this statute than it did in the dower cases., which the Commission cited. those cases, the “ personal ’ ’ character of the election had the result that the privilege of a widow to elect to take her dower rights did not pass to her legal representatives. (Flynn v. McDermott, supra, at p. 65; Youngs v. Goodman, supra, at p. 473.) That this was what the Legislature had in mind when it inserted the word “ personal ” in section 18 has been held in many Surrogate Court decisions since Matter of Mihlman (140 Misc. 535). The Commission’s own indication as to the significance of the word personal ” in section 18 makes it unnecessary, we think, to rely on the legislative admonition that these statutes “ shall be liberally construed ” to carry out the intention “ to increase the share of a surviving spouse in the estate of a deceased spouse ” (L. 1929, ch. 229, § 20; see Matter of Byrnes, 260 N. Y. 465, 472).

Of course the right to elect is “ personal ” in the sense that an election must in each case be a conscious, individually made choice between the statutory provision and the testamentary provision. (See Matter of Hills, 264 N. Y. 349, 355.) The statute (§ 18, subd. 7) says that the choice between those alternatives shall be made “ by serving written notice of such election upon the representative of the estate ”, but nothing suggests that the Legislature intended thereby to require a writing subscribed by the widow’s own hand. It has been assumed that the act prescribed may be performed by the spouse herself or by her duly authorized agent or attorney in fact ” (Matter of Banks, 31 N. Y. S. 2d 652, 655). In the Supreme Court of Pennsylvania there is direct authority, that such a notice of election may be signed, on behalf of the widow, by one holding a power of attorney in general terms which did not specifically confer authority to make such an election. (Celenza’s Estate, 308 Penn. St. 186.) The Appellate Division, in its opinion for affirmance in the present case, expressed the view that neither the common law nor the treaty entitled the Consul “ to exercise a right which was personal to the widow.” (265 App. Div. 878.) It made the further observation that “ the office of the Consul is no more extensive in that respect than that of a committee of an incompetent ” (citing Matter of Hills, 264 N. Y. 349, 353; Matter of Brown, 212 App. Div. 677, 679, affd. 240 N. Y. 646). That view fails, we think, to take into account the controlling fact that the Polish-American treaty in terms gives the Consul-General the same powers as if he held a power of attorney from the ‘ ‘ heirs or legatees ”. The Brown case (supra) asserted the power of a court of equity to make an election, as to dower, on behalf of an incompetent widow. Section 18 gives statutory sanction to such an exercise of equitable powers, for the safeguarding of an insane widow’s rights under section 18. But we are here examining into the authority of one who by treaty has been constituted the attorney in fact of his absent national. Powers of attorney to represent interested parties have traditionally been recognized in the Surrogate’s Court. (See Surrogate’s Court Act, § 231-b.) No limitation of this Consul’s agency is expressed in the treaty save only that he is not to act if the heirs or representatives themselves have appeared in person or by duly authorized representatives. The Consul’s treaty-created power of attorney is, like any similar grant, “to be construed according to the natural meaning of the words in view of the purpose of the agency and the needs to its fulfillment ” (Porges v. U. S. Mortgage & Trust Co., 203 N. Y. 181, 188). It is to he interpreted in the light of the situation, the parties, the subject matter involved, and general usages. (Restatement of the Law of Agency, §§ 32, 34, 37.) The coverage of the agency must not he so strictly delimited as to defeat its very purpose. (Matter of 173 App. Div. 517, 519.) We think the narrowing walls erected by the courts below go far toward barring the Consul from all right to do anything effective or practical in the interest of his absent fellow-countryman. His commission from his government (and from ours) to “ appear ” for Mrs. Zalewski and to “ represent ” her must, in common sense, assign to him duties more helpful and useful to her than that of merely standing mute at the bar of the Surrogate’s Court.

Whatever the word appear ” may mean in the case of attorneys at law, it does not operate to narrow the role of the Consul to that of a mere spokesman, powerless without specific instructions, especially when the word “ appear 55 is linked in the treaty with the explanatory clause “as if he held their power of attorney to represent them ”. If the Consul had definite instructions from his national, he would not need the treaty as his credential. If the absent national had communicated her wishes to any “ duly authorized representative ”, article XXIV would be out of the picture. The result of the decisions below in this proceeding is to close the doors of the court on the Consul, unless he can show formal authorization from his national, whereas the treaty shows on its face that the Consul is to take part in the proceedings only when there is absence of any such formal authorization running to him or to anybody else. (See Matter of Kolodziej, 153 Misc. 115.)

The effect we give herein to article XXIV is not only a “ sensible and reasonable ” one (Hamilton v. Erie R. R. Co., 219 N. Y. 343, 353) but is in harmony, also, with the long trend of authority in this country. Discussions as to the nature and extent of consular authority to represent nationals in our courts usually begin with the case of The Bello Gorrunes (supra) decided in 1821. That decision was cited by the Surrogate in his opinion here, as stating ‘ ‘ a familiar principle of law that foreign consular representatives are deemed international attorneys in fact for their nationals (177 Misc. 384, 386.) In The Bello Corrunes the Spanish Vice-Consul could point to no treaty provision setting forth his rights; nonetheless he was held entitled, by virtue of his office, to the privilege of suing in one of our courts of Admiralty, for return of a ship owned by Spaniards, whose very names he did “ A Vice-Consul duly recognised by our G-overnment ”, wrote Justice JohksoN “ a competent party to assert or defend the rights of property of the individuals of his nation, in any Court having jurisdiction of causes affected by the application of international law ” (p. 168). A few years earlier Justice Story, on circuit, wrote an opinion in Rowe v. Brig (Fed. Cas. No. 12093) upholding the right of a Spanish Consul to defend in court, on behalf of absent and unknown Spanish owners, against a claim made by salvors. In 1851 another Federal judge wrote (Robson v. Huntress, Fed. Cas. No. 11971) that “ The right of a consul to intervene on behalf of citizens of his own country who are absent hut interested, seems too well established in practice to he doubted ”. In Alabama (Carpigiani v. Hall et al., 172 Ala. 287) the court found authority in “ the law and comity of nations ” for allowing the Italian Consul, without treaty .provision or authorization by his interested nationals, to petition for the removal of an administrator who had obtained his appointment through fraud. The New York decisions have followed this trend.. In Matter of Tartaglio (12 Misc. 245, 246) a much-cited case, the court, while passing on the right of an Italian Consul to demand and receive for his nationals their distributive shares .of an estate, wrote that the word defend ’ ’ in the applicable treaty ££ is to be given the broadest meaning, and includes the power to maintain affirmatively the rights of the consul’s countrymen, and our local as well as federal judiciary must, in obedience to the treaty, recognize such rights.” The Surrogate in that opinion expressed the view that ‘ ‘ in the absence of 'such treaty provision a foreign consul would have much the same power.”

The power of the Consul to bring suits and take positions in court is not to be considered as limited to the mere conservation of property or the collection of liquidated claims. Numerous decisions uphold his right to stand on a broader platform. The leading case of In re Herman’s Estate (158 Minn. 274) affirmed the Consul’s right to file objections to a will. In Szabo’s Estate (143 N. Y. S. 678) Surrogate Fowler, citing Carpigiani v. Hall (supra) wrote that he had no doubt as to the Austrian Consul’s right to petition for the revocation of letters testamentary issued to another. This court, in Hamilton v. Erie B. B. Co. (supra) while denying a Consul’s right to compromise a claim of his nationals in an action for negligently causing death, did not circumscribe the Consul’s activities on behalf of his nationals in a Surrogate’s Court proceeding. In Hunko v. Buffalo Crushed Stone Co. (203 App. Div. 284) a Vice-Consul was recognized as a proper person to file a claim for workmen’s compensation where the widow of the deceased workman resided in and was a citizen of a foreign land (for a» similar holding, as to a suit under an Employer’s Liability statute, see Ljubich v. Western Cooperage Co. [93 Ore. 633]). Consuls have been found qualified to represent alien infants in accounting proceedings. (Matter of Bristow, 63 Misc. 637; Matter of Ostrowski, 160 Misc. 482.) No case has been found wherein there has been directly passed upon the right of a Consul to make a formal election for his nonappearing national, hut we see no reason why his broad powers should stop short of that. The bringing of or defense of a lawsuit, the enforcement of any claim or the filing of any sort of objection in Surrogate’s Court, always involves the making of an election of one kind or another. Our courts will, as they did in Hamilton v. Erie R. R. Co. (supra) protect the absent.party against any assumption by a Consul of power to give away, release or sacrifice the absent party’s rightful claims, but no such adverse action by the Consul-General is involved here. The situation here disclosed clearly calls for more than a mere collecting in for the widow of her legacy and the property set off to her under section 200 of the Surrogate’s Court Act (to which exempt property the Surrogate held the Consul could make claim). The Consul-General, we think, might well take his stand on the rule as stated by a company of recognised scholars in the Harvard Law School’s Eesearch in International Law ” (p. 278): ‘ Inquiry, preliminary intervention and conservatory measures may not prove sufficient to protect the interest of an absent, minor or incompetent national of the sending state. In that case the consul is entitled by this paragraph to represent such national in proceedings before the courts or other authorities of the receiving state, initiating and defending actions and in general doing what the individual himself might do to defend his interests under the local law if he were present and competent. The consul must of course conform to the local law. While in representing his absent national he would be an attorney in fact, he could not appear as attorney in law unless a member of the bar of the court before which he acts (see Mexico, Law 1859, Art. 10, par. 2).”

The Legislature of this State, in a statute passed in 1936 and which applies only to estates smaller than this one, conferred upon Consuls much more complete power and duties of representation than are here asserted by the Consul-General. By that enactment (Surrogates Court Act, § 56-a) it is provided that when the gross estate is less than $2,000, or a nonresident alien’s interest is worth less than $300, service of process on the alien may, by Surrogate’s order, be made on the nearest Consul of the nation of which the alien is a national, and any and all other service on the alien, even by mailing, may be dispensed with. Service on the Consul, says section 56-a, shall be deemed personal service upon such alien within the state.” When so served, the statute says, the Consul may appear and act on behalf of his in the proceeding unless and until the national shall himself appear either in person or by other duly authorized representative.” While section 56-a cannot be applied in this estate, because of the amounts involved, it is at least an expression of public policy not at variance with the result we reach in this opinion.

Finally, we are confirmed, in our view that this treaty makes the Consul more than a mere conservator or protector of property, by other articles of this 1931 Polish-American Treaty. Articles XX and XXII empower him to take appropriate steps toward such conservation and protection, but articles XXI and XXIII go much farther (as does article XXIV, which we are here construing) by according him the right to appear personally ” in matters concerning claims for nonsupport of nonresident minor children against a father who is a resident alien, and tlie right to assert claims for workmen’s compensation on behalf of his absent countrymen. On all the authorities and precedents, we conclude that this Consul-General is, for present purposes, a personal agent of his national, charged with £ £ doing what the individual himself might do • to defend his interests under the local law if he were present and competent ’ ’ (Harvard Research, supra).

The order of the Appellate Division and the decree of the Surrogate’s Court, so far as appealed from, should be reversed, with costs in all courts to both parties payable out of the estate, and the matter remitted to the Surrogate’s Court for further proceedings not inconsistent with this opinion.

LehmaN, Ch. J.

(dissenting). Josef Zalewski died on September 17, 1940. In his will he bequeathed the sum of one hundred dollars to his wife Felicja Zalewski. Felicja Zalewski is a resident and national of the Republic of Poland. The will was admitted to probate and letters testamentary were issued to the executor named in the The Consul-General of the Republic of Poland executed, served upon the executor and filed an instrument, stating: ‘1 I, Hon. Dr. Sylwester Gruszka, Consul General of the Republic of Poland * ⅜ * acting on behalf of the surviving spouse of Joseph Zalewski, deceased, to wit, Felicia Zalewski, a resident of the Republic of Poland ⅜ '* do thereby exercise the personal right of election given the said Felicia Zalewski, pursuant to the provisions of Section 18 and the Decedent Estate Law, and do hereby elect, on behalf of the said Felicia Zalewski, to take her share of the estate of the said decedent as in intestacy.” Thereafter the executor brought proceedings to settle his account and the Consul-General appeared and filed objections on behalf of the testator’s spouse. His power to ££ exercise the personal right of election given the said Felicia Zalewski ” was challenged, and the courts below have sustained the challenge.

I concur in the opinion of Judge DesmoNd insofar as it holds that the “ personal right of election ” given to the surviving spouse of a testator by section 18 of the Decedent’s Estate Law is ££ personal ” only in the sense that an election must in each case be a conscious individually made choice between the statutory provision and the testamentary provision.” I

to confer upon a consular officer power to exercise in behalf of a nonresident national a “ personal election,” i.e., a conscious, individually made choice between the statutory provision and the testamentary provision — nor do I think that by any process of liberal construction can the power to “ appear ” and represent ” heirs and legatees in the estate be stretched to include power to exercise such a choice for one of them.

In no cited case has a court sustained an assertion of power in consular officers to do more than act for the protection of rights granted to their nationals by law. The courts have drawn back whenever they were asked to sanction an exercise of any broader power by a consular officer. Thus, in The Bello Corrunes (6 Wheat. 152, 168) the court said: a Vice Consul duly recognised by our Government, is a competent party to assert or defend the rights of property of the individuals of his nation, in any Court having jurisdiction of causes affected by the application of international law. To watch over the rights and interests of their subjects, wherever the pursuits of commerce may draw them, or the vicissitudes of human affairs may force them, is the great object for which Consuls are deputed by their sovereigns; and in a country where laws govern, and justice is sought for in Courts only, it would be a mockery to preclude them from the only avenue through which their coursé lies to the end of their mission. The long and universal usage of the Courts of the Unitéd States, has sanctioned the exercise of this right, and it is impossible that any evil or inconvenience can flow from it. Whether the powers of the Vice Consul shall in any instance extend to the right to receive in his national character, the proceeds of property libelled and transferred into the registry of a Court, is a question resting on other principles. In the absence of specific powers given him by competent authority, such a right would certainly not be recognized.”

Again, in In re Herman’s Estate (159 Minn. 274) cited by Judge Desmostd as a leading case, the court said “ A consul may doubtless take appropriate measures for the protection of the property interests of the citizens of the country which he represents in cases where they have no other representative and are not present to act for But he acts merely in Ms official capacity as the representative of Ms government, and not. as the personal agent or representative of the parties in interest, unless he has been given special authority to act for and represent them (citing cases). Plis acts are provisional and for the purpose of preserving the property and securing for his nationals an to assert and maintain their rights thereto. ⅝ ⅝ * We have been cited to no case, and we have found none, holding that a consul, simply by virtue of his office, has power to act for and represent individual claimants to property, so as to foreclose their claims thereto, without special authority from them to do so.”

The exercise of the personal right of election ££ requires the abandonment or destruction of an alternative right.” (Matter of Hills, 264 N. Y. 349, 353.) The statute which creates the right of election does not make its exercise subject to the approval of the court. It confers absolute freedom of choice on the surviving spouse of a testator. Many personal considerations usually influence that choice, and no person other than the surviving spouse can weigh these considerations. If a consular officer can exercise the ££ personal ” right of election conferred upon a surviving spouse as if he had a power of attorney for that purpose he may destroy the alternative right which ■the spouse whom he represents might prefer and there is nothing in the statute or in the Treaty which would empower a court to refuse to give effect to the choice so made though it might be patently unwise. In this case the bequest which is abandoned is small, and perhaps the choice made by the consular officer may be wise and would be approved by the court. The Legislature has not, however, made the right to reject a testamentary provision dependent upon its inadequacy, and if under the Treaty that right may be exercised in behalf of a nonresident national by a consular officer, no restriction upon such exercise is expressed in the Treaty or can be read into the Treaty by fair implication.

The words 11 a consular officer '⅜ ⅝ ⅜ shall ⅝ # * have the right to appear * * * for all such heirs or legatees ¾ ⅝ ⅝ as may be nonresidents and nationals of the country represented by consular officer with the same effect as if he held their power of attorney ” are not fairly open to the construction that the consular officer may act for them in all matters as if he held their general power of attorney. He has the right to “ appear ” for them as if he held their power of attorney, and under the Treaty he can exercise no other right. He may he authorized to act as their personal agent so far hut no further. He may assert or defend the rights of property of the individuals of his nation, in any Court ”. He is not authorized to exercise for a national a personal choice to take an intestate share of the testator’s estate in lieu of any provision made for the benefit of the national in the will.

Order should he affirmed.

Loughean, CoNway and Thacher, J J., concur with Des-moxd, J.; LehmaN, Ch. J., dissents in opinion in which Rippby and Lewis, JJ., concur.

Order reversed, etc.