author: Cardozo, Ch. J.

text:
    Leon D. Hoadley, Appellant, v. Elsie R. Hoadley, Respondent.
    Husband and wife — domestic relations — insanity — marriage voidable for insanity may not be annulled at the suit of the spouse who is sane.
    A marriage voidable for insanity may not be annulled at the suit of the spouse who is sane. (Authorities on the subject of annulment of marriage on ground of insanity of one of the parties, collated and discussed.)

      Hoadley v. Hoadley, 217 App. Div. 799, affirmed.
    (Argued January 24, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 2, 1926, which unanimously affirmed a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for judgment on the pleadings.

      Arthur J. Ruland for appellant.
    The court now has the power to declare void a marriage contract where one of the parties thereto was a lunatic at the time it was entered into. (Reed v. Reed, 195 App. Div. 531; Walter v. Walter, 217 N. Y. 439; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Marvis v. Marvis, 216 App. Div. 291; Jones v. Brinsmade, 183 N. Y. 258; Liske v. Liske, 169 N. Y. Supp. 177; Whitney v. Whitney, 121 Misc. Rep. 485; Smith v. Smith, 112 Misc. Rep. 371; Wightman v. Wightman, 4 Johns. Ch. 343.) The party of sound mind may bring such an action to annul the marriage on the ground of insanity existing at the time of the marriage, but unknown to the plaintiff. (Erkenbrach v. Erkenbrach, 96 N. Y. 456; Roth v. Roth, 97 Misc. Rep. 136; Marvis v. Marvis, 216 App. Div. 291.)

      Láveme M. Twining for respondent.
    This action is purely statutory and the Legislature has defined the method of bringing such an action and by whom such an action may be brought. (Stokes v. Stokes, 198 N. Y. 301.) The sane party to a marriage contract cannot bring an action to annul the marriage and a motion for judgment on the pleadings will be granted. (Reed v. Reed, 106 Misc. Rep. 85; 195 App. Div. 531; Walter v. Walter, 217 N. Y. 439; Severson v. Macomber, 153 App. Div. 482; 212 N. Y. 274.)
   Cardozo, Ch. J.

Plaintiff was married to defendant in 1912. He says that she was then a lunatic, “ wholly unable to understand the nature of the contract of marriage and its effects and consequences.” Ignorant, he says, of the lunacy at the time of the marriage, he lived with her for ten years, till the fact of her lunacy was adjudged in appropriate proceedings. In the meantime two children were born of the union. She is now, and for some years 'has been, an inmate of an asylum. He asks that nullity of the marriage be judicially declared.

The appeal brings up the question whether a marriage voidable for insanity may be annulled at the suit of the spouse who is sane. The question is a new one in this court. It has been the subject of conflicting decisions in the courts below. One Appellate Division in Reed v. Reed (195 App. Div. 531) and again in the case at hand, has held against the right of action. Another Appellate Division has reached a contrary conclusion (Marvis v. Marvis, 216 App. Div. 291). In accord with the latter ruling are some decisions at Special Term (Liske v. Liske, 135 N. Y. Supp. 176; Whitney v. Whitney, 121 Misc. Rep. 485).

At common law a marriage with a lunatic was not merely voidable, but void (1 Blackstone, Comm. 438; 2 Kent’s Comm. 76; Pollock, Contracts [8th ed.], 95, 96; 19 Halsbury Laws of England, § 823; Wightman v. Wightman, 4 Johns. Ch. 343, 345; Patterson v. Gaines, 6 How. [U. S.] 550, 553, 592; Rawdon v. Rawdon, 28 Ala. 565; Winslow v. Troy, 97 Maine, 130; Bell v. Bennett, 73 Ga. 784; Floyd County v. Wolfe, 138 Ia. 749, 752; Matter of Gregorson, 160 Cal. 21; Dunphy v. Dunphy, 161 Cal. 87; Elliott v. Gurr, 1812, 2 Phillim. 16, 19; Browning v. Reane, 2 Phillim. 69). Sentence of nullity was unnecessary to avoid its obligation. Sentence, when pronounced, was the declaration of an accomplished fact. For “ the good order and decorum of society,” as well as for “ the peace and conscience ” of the parties, the chancellor might intervene to set aside an apparent obstruction to remarriage. He did this, however, in the exercise of his general jurisdiction, which was independent of any statute, to give relief in cases of lunacy or fraud (Wightman v. Wightman, supra; Perry v. Perry, 2 Paige, 501; Griffin v. Griffin, 47 N. Y. 134, 138, 139). Perhaps even in those days, the marriage, though severed without sentence, was void sub modo, or in a secondary sense. There is support for the doctrine that it might be ratified by the concurrent action of the parties, and thus made valid from the beginning, after reason was restored (cf. Eversley Domestic Relations, pp. 74, 75, and Wightman v. Wightman, supra). A parallel for such a holding is to be found in the effect at common law of a marriage with a minor under the age of consent (1 Black. Comm. 437; Co. Litt. bk. 1, ch. X, pp. 123, 124; Gathings v. Williams, 5 Iredell’s Law, 487; 44 Am. Dec. 57, note). There, also, sentence was unnecessary, yet confirmation was permitted. As long as this view prevailed, there was no room for a holding that the sane spouse and the insane one were on planes of inequality as suitors for relief. The conception of the marriage as void persists in England even now, though it is recognized as an anomalous departure from the rule as to the effect of lunacy upon other contracts of a lunatic not so found by inquisition. Marriage, however, is a peculiar transaction, and the exceptional treatment of it in our law, though perhaps historically due to the influence, in ecclesiastical courts, of more general rules of civil or canon law, may well be justified on grounds of convenience ” (Pollock, supra). Accordingly, the cases are many in which at the suit of a sane spouse the courts of England have pronounced a decree of nullity of marriage (Durham v. Durham, L. R. 10 P. D. 80; Hunter v. Hunter, L. R. 10 P. D. 93; Cannon v. Cannon, L. R. 10 P. D. 96; Forster v. Forster, 1923, 39 T. L. R. 658; Jackson v. Jackson, 1908 P. 308). Courts in the United States have followed the common law when they have been unfettered by a statute (Little v. Little, 13 Gray, 264). The question remains whether the same rule is to govern in jurisdictions where the effect of lunacy is to make the marriage voidable (cf. the query in Wiser v. Lockwood’s Estate, 42 Vt. 720, 722).

The point of departure in this State is the opinion of Chancellor Kent in Wightman v. Wightman (supra). The chancellor stated in adherence to the English rule that the marriage was void ipso facto, but that a decree was appropriate even if unnecessary. At the same time, he assumed in his opinion that the marriage might be ratified by approval or consummation after sanity had been restored. The suit was at the instance of a wife, who had contracted the marriage when insane, and sued to annul it upon recovering her reason. There was no occasion, therefore, to determine whether a reciprocal right of action would have been conceded to the husband.

A decade after Wightman v. Wightman a new form and content was given by the Revised Statutes to the law of marriage and annulment. Marriages that were incestuous or bigamous were declared to be absolutely void ” (2 R. S. 138, §§ 3, 5). Marriages contracted by persons incapable of contracting, or whose consent had been obtained by force or fraud, were thereafter to be void from the time their nullity was declared by a court of competent authority (Revisers’ Notes, p. 87; 2 R. S. 139, § 4; cf. Matter of Moncrief, 235 N. Y. 390). At the same time competent authority was established and defined. “ The chancellor, may, by a sentence of nullity, declare void the marriage contract, for either of the following causes, existing at the time of the marriage: (1) That the parties, or one of them, had not attained the age of legal consent: (2) That the former husband or wife of one of the parties was living; and that the marriage with such former husband or wife, was then in force: (3) That one of the parties was an idiot or lunatic: (4) That the consent of one of the parties was obtained by force or fraud: (5) That one of the parties was physically incapable of entering into the marriage state” (2 R. S. 142, § 20), The Domestic Relations Law (Cons. Laws, ch. 14) of our own day maintains the same distinctions. The one class of marriages is now characterized as void and the other class as voidable (D. R. L. §§ 5, 6, 7). Along with this division there came with the Revised Statutes a comprehensive regulation of remedial rights. When annulment was sought on the ground that one of the parties was under the age of legal consent, it “ may be brought by the parent or guardian entitled to the custody of such minor, or by the next friend of such minor,” but in no case was a marriage to “be annulled on the application of a party who was of legal age at the time it was contracted,” nor when “ the parties, after they had attained the age of consent, had for any time freely cohabited as husband and wife ” (2 R. S. 142, § 21). When annulment was sought “ on the ground that a former husband or wife of one of the parties was living,” it might be “ declared void on the application of either of the parties, during the life time of the other, or .upon the application of such former husband or wife” (§ 22). "When annulment was sought on the ground of the idiocy of one of the parties, it might be declared void “ on the application of any relative of such idiot, interested to avoid the marriage, at any time, during the life time of either of the parties ” (§ 24). When annulment was sought on the ground of the lunacy of the parties, it might be “ declared void at any time, during the continuance of that lunacy, or after the death of the lunatic in that state, during the lifetime of the other party to the marriage, on the application of any relative of the lunatic, interested to avoid the marriage ” (§ 25). Where during the lifetime of both the parties to the marriage annulment was sought on the ground of idiocy or lunacy, and no suit for such relief was prosecuted by a relative, a sentence of nullity might be pronounced “ on the application of any person admitted by the court to prosecute, as the next friend of such idiot or lunatic ” (§26). The marriage of a lunatic might also be declared void, upon the application of the lunatic, after the restoration of reason; “ but in such case, no sentence of nullity ” was to be pronounced, if the parties had “ freely cohabited as husband and wife, after the lunatic was restored to a sound mind ” (§ 27). “ Children of a marriage annulled on the ground of lunacy or idiocy ” were to be entitled to succeed in the same manner as legitimate children, to the real and personal estate of the parent, who was of sound mind ” (§ 28). A marriage might be annulled on the ground that the consent of one of the parties had been “ obtained by force or fraud, during the lifetime of the parties, or one of them, on the application of the party whose consent was so obtained, or of the parent or guardian of such party, or of some relative interested to contest the validity of the marriage” (§ 30). A suit might also be maintained to annul a marriage on the ground of the physical incapacity of one of the parties,” but only "by the injured party against the party whose incapacity is alleged ” (§ 33). A reciprocal right of action, though with certain limitations, was established by amendment in favor of the party who was incapable (Code Civ. Pro. § 1752; Civ. Prac. Act, § 1141). The plan in its main outlines has stood the tests of time. The provisions of the Revised Statutes were carried with little change into the Code of Civil Procedure (§§ 1742 et seq.) and thence into the Domestic Relations Law and Civil Practice Act (§§ 1132 et seq.), where they remain today. Changes of verbiage there have been. Scrutiny and comparison will show that in truth there has been little more. Civil Practice Act, section 1132, must be read in connection with Domestic Relations Law, sections 5, 6, 7, and so read is seen to be merely a re-enactment of 2 Revised Statutes, 142, section 20, with its grant of power to the chancellor to pronounce a sentence of nullity for enumerated causes. What the Revised Statutes meant in 1830, that the equivalent- sections of the Practice Act now mean, if we lay aside the effect of specific amendments irrelevant to the case before us. The substance is still the same.

We think the right of avoidance has been limited to the lunatic and those privileged to act in the lunatic’s behalf. The classification of the marriage as voidable, and not absolutely void, would take us a certain distance on the road to that conclusion. Decisive it is not. The contract is voidable, but voidable by whom? The marriage can no longer be severed by a process of self-help. We have yet to say whether the privilege of avoidance is reciprocal and equal. The general rule, however, is that a contract voidable for insanity is not subject to avoidance at the suit of the party who is sane (1 Williston, Contracts, §§ 105, 250, 251, 254; Atwell v. Jenkins, 163 Mass. 362; Blinn v. Schwarz, 177 N. Y. 252; Holt v. Ward Clarencieux, Strange, 937; 2 Black. Comm. 291). The right to avoid is for the personal protection of the one who is disabled (Carrier v. Sears, 4 Allen, 336, 337; Atwell v. Jenkins, supra). Marriage may be an exception. One would think it was if one were to limit one’s reading to what is said of marriage disabilities in the pages of Coke and Blackstone. “ If a man of the age of fourteen marry a woman of the age of ten, at her age of twelve he may as well disagree, as she may, though he were of the age of consent; because in contracts of matrimony, either both must be bound, or equal election of disagreement given to both; and so é converso, if the woman be of the age of consent, and the man under ” (Co. Litt. bk. 1, ch. X, pp. 123, 124). If the husband be of years of discretion and the wife under twelve, when she comes to years of discretion, he may disagree as well as she may; for in contracts the obligation must be mutual; both must be bound, or neither ” (1 Black. Comm. 436). One must remember in appraising these statements that they were made with reference to contracts then classified as void. There was no such thing in strictness as a right or privilege of avoidance in days when a void relation left nothing to be avoided. In Blackstone’s time, if not before, the law as to contracts merely voidable was already on the modern basis (cf. 1732, Holt v. Ward Clarencieux, supra). One can find a statement of the doctrine in later pages of the Commentaries (1769, 2 Black. Comm. 291).

We start then with this, that the relation, whatever its incidents, is to be fitted to another mould. Contracts of marriage have been taken out of the void class and put into the voidable. One may argue with plausibility that the ordinary consequences implicit under the law of contract in the new classification are to follow from the change. The argument, though plausible, is inconclusive, at least in the absence of other evidences of intention. We find them in the law of remedies. The Legislature has said that the marriage may be annulled at the suit of relatives or friends, or at the suit of the incompetent after reason has been restored. This was declaratory or nearly so of common-law rules (19 Halsbury Laws of England, § 826, and cases there cited). It has not said that the marriage may be annulled at the suit of the party who is free from disability. There is a statutory list of the persons authorized to sue, without suggestion of a thought to amplify the number. One may not say that the function of the fist was to provide the incompetent with champions who would otherwise be lacking. There were champions adequate for protection who were recognized already by the practice of the Court of Chancery (Halsbury, supra; Bishop, New Commentaries on Marriage, Divorce and Separation, vol. 2, § 527). If the fist was not exclusive, there was no occasion for its making (cf. Walter v. Walter, 217 N. Y. 439). The notes by the revisers give confirmation to the view that exclusive it was meant to be. Speaking of their work, they say (p. 89, Revisers’ Notes): “ The cases are enumerated in which marriages are to be dissolved on account of the nullity of the contract, and the persons by whom and at what time application for that purpose is to be made.” To say that parties are enumerated is to say by reasonable intendment that they are enumerated fully. Doubtless, the meaning of the statute would have been clearer if the section governing suits on the ground of lunacy had been made as explicit as the one governing suits where the marriage is with a minor under the age of consent (2 R. S. 142, § 21; Civ. Prac. Act, § 1233). There we find a statement in so many words that nullity shall not be decreed at the suit of the party of legal age. The presence of this provision has been thought to suggest a doubt whether a reciprocal right of action is to be denied where the disability is lunacy. It is easy to exaggerate the significance of a single section or a single sentence in a section. Intention is to be gathered when all are viewed together in their grouping and succession. With the outlook thus widened, there is small escape from the conclusion that enumeration, though unaccompanied by negation of a correlative or mutual right, was intended to be final. Where so much has been set down, and with such meticulous precision, one finds it hard to believe that another rule was to govern as to anything left out (cf. §§30 and 33, now Civ. Prac. Act, §§ 1139, 1141). The work of the revisers was more than a partial survey of the field, a précis or a summary. It covered the whole ground. As to the subject matter treated, it was a comprehensive code of remedies.

Argument to the contrary is built to some extent upon provisions and omissions as to marriages that are wholly void. If there is any light to be gained from such a source, it is flickering and doubtful. The implication must be, if the nullity is absolute, that either party is entitled to the judgment of the court. Accordingly, we find that where marriages are void there are gaps in the scheme of remedies as framed by the revisers and thereafter carried into the codes. The statute is silent as to the parties who may sue to annul a marriage void for incest. It does indeed prescribe the parties where a marriage has been contracted during the life of another wife or husband (§ 22, now Civ. Prac. Act, § 1134). The object was to extend the right of action in such circumstances to the former husband or wife, when otherwise the right might have been taken to be limited to parties to the contract subject to annulment. Moreover, marriage is not always void though there be another wife or husband, for it may have been contracted in good faith after an absence of five years, and may thus be merely voidable (2 R. S. 139, § 6). In brief the Legislature enumerated when it believed that enumeration would be useful. Apparently it had this belief in every case where a marriage is valid till annulled. It then addressed itself to the task of classifying the parties that would be competent to sue. We are hardly to suppose that after entering upon the task it meant to stop half way. The inference is rather that it went forward to the end. Whoever would maintain a suit must be able to show himself a member of one of the enumerated classes. There is ingenious argument to the contrary. We may concede that in such a tangle of statutes the quest for certitude is futile. We are to weigh the competing considerations in such scales as are available. We think the voidable character of the contract and the failure through all the revisions of the statute to include the sane spouse among those privileged to sue, must sway the balance for the view that the privilege unless granted is to be taken as denied. Walter v. Walter (217 N. Y. 439) dealt with a different situation, and may hardly be said to give support even by way of dictum to one view or the other. What was said in it is at least consistent with the judgment now announced.

There remain some considerations of public policy that are not to be ignored. If a sane husband may avoid a marriage for the insanity of his wife, the question will come up whether he may put his wife aside though her insanity was known to him when the marriage was contracted. The problem is one that has disturbed the English courts. There is a suggestion in one case that the husband in such circumstances would be held to be “ estopped ” to declare the marriage void (Hancock v. Peaty, L. R. 1 P. & D. 335, 341). Possibly the same result might be reached through the doctrine that one coming into equity must come there with clean hands. There are statutes in some States whereby the sane spouse is expressly authorized to sue. It is noteworthy that they are coupled with conditions so framed as to carry with them an assurance of good faith. Thus in Minnesota, no marriage shall be adjudged a nullity at the suit of the party capable of contracting, on the ground that the other party was * * * insane, if such * * * insanity was known to the party capable of contracting, at the time of such marriage ” (Lewis v. Lewis, 44 Minn. 124, 125). There is a like statute in Mississippi (Wilson v. Wilson, 104 Miss. 347.) There is another in New Jersey (Compiled Statutes of N. J. p. 2021, subd. IV; Daniele v. Margulies, 95 N. J. Eq. 9). One may doubt whether the Legislature of New York, if it had supposed that such a right of action had been created or preserved, would have been less diligent to safeguard the remedy with appropriate restrictions. The trouble does not end, however, with the moment of the marriage. Problems difficult of solution will arise where the husband, though ignorant at the beginning, cohabits with the wife after her insanity is known. There is instinctive revolt against the notion that infirmity of the mind shall be used as a pretense for relief against satiety of the body. In this very case, plaintiff and defendant lived together for ten years. The insanity is alleged to have existed from the beginning, yet as late as six years after the marriage a child was born of the union. One would suppose that the cases must be rare indeed in which insanity so acute as to vitiate a marriage (cf. Meekins v. Kinsella, 152 App. Div. 32; Lewis v. Lewis, 44 Minn. 124; Anonymous, 4 Pick. 32; Roether v. Roether, 180 Wis. 24; Forster v. Forster, 1923, 39 T. L. R. 658; Bishop, New Commentaries on Marriage, Divorce & Separation, vol. 1, §§ 600, 601; 19 Halsbury, supra, § 825) could remain so long concealed. Indeed, the plaintiff does not tell us when it was that the defendant’s affliction was discovered. His allegation is merely this, that the affliction was not known at the moment of the marriage. If a marriage so contracted is voidable in its inception at the instance of the husband, shall later cohabitation with his wife after her insanity is known be taken as ratification or affirmance or inequitable conduct that will defeat the right of action? (cf. Rawdon v. Rawdon, 28 Ala. 565). The Legislature was careful to provide that annulment should be refused at the suit of the insane spouse if cohabitation continued after sanity was restored. It has said nothing as to the rights of the other spouse where there has been continued cohabitation after the insanity is discovered. In a code so precise- and comprehensive would it have been satisfied to leave so much uncovered had it supposed that its enumeration would not be taken as exclusive? If so, the reciprocal right of action is first to be inferred by recourse to a process of construction, and then by a new process of construction is to be burdened with implied conditions. Uncertainties are not exhausted with the cases thus supposed. A spouse insane at the time of marriage may subsequently be restored to reason. If the wife, becoming sane, confirms the marriage, as she may, will judgment go for the husband to the effect that it is void? These and like queries suggest embarrassments and complications that may have seemed to the Legislature to find their readiest solution in the denial of a remedy as easily abused.

Much is said about hardship. Not all of it is of such a nature as to be heeded by the law. The theory of annulment on the ground of insanity is not that the sane spouse has made a bad bargain in getting an insane partner. The theory is that the insane partner to the union has manifested a consent that is unreal for lack of a contracting mind. The hardship might be as great in many of its phases if insanity supervened a month after the marriage or a year. It might be as great if the diseased condition were one of body and not of mind. The law turns a deaf ear to these and like regrets.

When all deductions are allowed, there remains, none the less, in possible situations a residuum of hardship that may be thought to be special and peculiar. One of the parties to the marriage, though innocent of wrongdoing, is condemned to uncertainty as to his or her status unless the other party to the marriage or an appointed champion is willing to dispel the doubt. The statute relieves such uncertainty from the worst of its incidents by fixing the status of the children irrespective of any suit. They remain in any event the legitimate offspring of the sane parent. This has been so since the days of the Revised Statutes (2 R. S. 143, § 28). They may now be declared legitimate as to the other parent also (Civ. Prac. Act, § 1135). Uncertainty remains to some extent in respect of rights of property incidental to a marriage. It remains, aside from legal consequences, a foe to peace of mind, a disquieting reminder of an anomalous position. Considerations such as these may suggest an amendment of the statute that will extend the right of action. Good faith can be assured by coupling the extension with appropriate conditions.

Our concern at this time is with the statute as enacted. A code of remedies exists. The plaintiff is unable to bring himself within it.

„ The judgment should be affirmed with costs.

Pound, Crane, Andrews and Lehman, JJ., concur; Kellogg, J., not sitting.

Judgment affirmed.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    Rajner J. Raner, Respondent, v. Isaac Goldberg, Appellant.
    Landlord and tenant —• lease — contract — absolute promise to pay — contingency destroying value of consideration no excuse for failure to pay where it may be inferred condition would have been inserted in contract had parties so intended — lease of premises for use requiring license from public official — absolute promise to pay rent — lessee may not recover amount paid on ground license has been refused.
    1. A person who makes an absolute promise to pay may not be excused from performance because of the happening of a contingency which destroys the value of the stipulated consideration for such payment, where inference is reasonable that an express condition so providing would have been inserted in the contract had the parties so intended. Where the promisor has knowingly chosen to make an absolute promise, he may not afterwards claim relief because subsequent events show that the choice was ill-advised.
    2. Where the parties to a lease of premises to be used as a dance hall understood that a license must be obtained before they could be so used and that grant of such license rested in the discretion of a public officer, but the lessee, nevertheless, made unconditional promise to pay rent, he may not maintain an action to recover sums paid as a deposit and as rent, on the ground that a license had been refused and he was thereby precluded from using the premises lawfully for the purpose for which they were leased. A condition may not be implied which the parties chose not to insert in their contract nor may it be held that anticipated grant of a license constituted the foundation of the contract when both parties knew that the grant of a license depended upon the discretion of a public officer. (Heine v. Meyer, 61 N. Y. 171, distinguished.)

      Raner v. Goldberg, 215 App. Div. 355, reversed.
    (Submitted January 25, 1927;
    decided February 23, 1927.)
    Cross-appeals from a judgment, entered January 28, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a verdict directed by the court, a jury having been waived, and directing judgment in favor of plaintiff.

      Jacob L. Holtzmann and Jacob Krisel for appellant.
    The mere fact that it became unlawful for plaintiff to conduct a dance hall did not excuse his performance of the lease. (Paradine v. Jane, Aleyn, 26; Adler v. Miles, 69 Misc. Rep. 601; City of Buffalo v. Chadeayne, 134 N. Y. 163; Lodes v. Department of Health, 189 N. Y. 187; New York State Investing Co. v. Brady, 214 App. Div. 592; Shedlinsky v. Budweiser Brewing Co., 17 App. Div. 470; 163 N. Y. 437; Kerley v. Mayer, 10 Misc. Rep. 718; 155 N. Y. 636; Baylies v. Fettyplace, 7 Mass. 325; Gaston v. Gordon, 208 Mass. 265; Taylor v. Finnegan, 189 Mass. 568; Teller v. Boyle, 132 Penn. St. 56; Miller v. Maguire, 18 R. I. 770; Standard Brewing Co. v. Weil, 129 Md. 487.) The purpose for which the property was leased having become unlawful, the subject-matter of the lease was destroyed and the lease became void, and the plaintiff was entitled to have his deposit and his rent returned. (Heine v. Meyer, 61 N. Y. 171; Weil v. Abrahams, 53 App. Div. 313; Kaiser v. Zeigler, 115 Misc. Rep. 282; Doherty v. Eckstein Brewing Co., 115 Misc. Rep. 175; New Chester Theatre Corp. v. Bischoff, 210 App. Div. 125.)
   Lehman, J.

In January, 1922, the parties entered into an agreement whereby the defendant leased to the plaintiff certain premises “to be used and occupied as an office and for dancing purposes and for the sale of all kinds of soft drinks and for sale of cigars, cigarettes, and ice-cream.” The parties undoubtedly intended that the premises were to be used as a public dance hall, and that all other use was merely incidental thereto. When the parties made the lease they understood that the premises could not be used lawfully as a dance hall unless a license for such use was obtained. The landlord was required under the terms of the lease to make certain alterations' which were intended to make the premises suitable for such use. When the alterations were complete the plaintiff applied for a license to conduct a dance hall on the premises. The license was refused. The reason for such refusal does not clearly appear, but perhaps it may be inferred that the license was refused because the premises were not far from a church, and members of the church and others opposed grant of a license for any building in that neighborhood. Because refusal to grant a license precluded the plaintiff from using the premises lawfully for the purpose for which the lease was made, the plaintiff brought this action to recover the sum of $3,000 paid as a deposit under the terms of the lease and $500 paid as rent for the first month. He claimed also reimbursement for certain expenses incurred in preparation for occupancy under the lease, but this claim was not pressed. At the close of the case both sides moved for the direction of a verdict. The trial justice granted the motion of the defendant. The Appellate Division has reversed the judgment as matter of law and has directed judgment in favor of the plaintiff for the return of the deposit and the rent for the first month.

There is obviously no impossibility or illegality in paying the rent, and the landlord by making the lease has conveyed to the tenant the estate for which rent was promised.” (Williston on Contracts, section 1955.) The parties in making the contract of lease did not intend that the premises should be used for an illegal purpose. They intended that the demised premises should be used as a dance hall only when the lessee had obtained a license. A contract so made is not unlawful. (Shedlinsky v. Budweiser Brewing Co., 163 N. Y. 437.) Use of the premises in the manner contemplated by the lease is unlawful only because the contingency that the license might not be granted has arisen. .

We assume for the purpose of this appeal that where parties enter into a lease exclusively for a use which is not illegal when the contract is made but such use becomes illegal by change of law, the lease is thereby terminated. We do not pass upon or decide such question. Courts of other jurisdictions have differed in regard to it. In such case it may perhaps be said that the value of the lease is destroyed by circumstance not within the contemplation of the parties when the lease was made, or even that a lease of premises to be used in a business subject to public regulation is impliedly subject to a condition that change of regulation shall not make the contemplated use illegal. Here even if we construe the provisions of the lease to mean that the lessee may not use the premises except for a dance hall, the value of the lease is destroyed not by a change of law or other circumstance arising after the making of the lease, and outside of the contemplation of the parties, but by failure of the lessee to secure a license which the parties understood must be obtained before the premises could be used for the intended purpose. Doubtless the lessee expected that a license would not be refused; probably the lessor shared that expectation. The question remains whether the obligation into which the lessee entered is conditioned upon the realization of that expectation.

It is clear that a person who makes an absolute promise to pay may not be excused from performance because of the happening of a contingency which destroys the value of the stipulated consideration for such payment where inference is reasonable "that an express condition so providing would have been inserted in the contract had the parties so intended. Where the promisor has knowingly chosen to make an absolute promise, he may not after-wards claim relief because subsequent events show that the choice was ill-advised. “ The test seems to be whether the event * * * was or might have been guarded against.” Where expectation is so unquestioned that it becomes a definite anticipation accepted by both parties as “ the foundation of the contract ” it may be said that there has been no choice between absolute and conditional promise; and that neither party could reasonably be expected to guard against an event which was excluded from the anticipations of both parties. (Krell v. Henry, 1903, 2 King’s Bench, 740.) In such cases a promisor has sometimes been relieved of his promise where the event belied the anticipation and destroyed the foundation of the contract.

Here the parties understood that a license must be granted before the premises could be used as a dance hall. Grant of such license rested in the discretion of a public officer. Expectation that he would exercise that discretion in favor of the applicant by no means excluded possibility of contrary decision. Many factors might enter into such decision by the public officer. The lessee might have refused to pay rent except on condition that the license would be granted. The lessor might have refused to make a contract to lease including in its terms provision for making repairs and alterations if the lessee had annexed a condition to his promise to pay rent. The lessee chose to make unconditional promise. The lessor’s promise was made in return. We may not now imply a condition which the parties chose not to insert in their contract, nor hold that anticipated grant of a license constituted the foundation of the contract, when both parties knew that the grant of a license depended on the discretion of a public officer. Though the question has not been directly passed upon heretofore by our court, in other jurisdictions the courts have reached similar conclusion. (See Teller v. Boyle, 132 Penn. St. 56; Gaston v. Gordon, 208 Mass. 265; Burgett v. Loeb, 43 Ind. App. 657.)

No decision is this State relied on by the tenant casts doubt upon this conclusion. In Heine v. Meyer (61 N. Y. 171) completion of stipulated work on a wall was rendered impossible by an order of the public authorities not due to any fault on the part of the plaintiff. In the other cases cited, the contracts provided for a use of premises which provisions of law then existing or thereafter enacted made unlawful under all possible circumstances. Such cases have no application, even if we assume that all were correctly decided, to a case where the contract provides for a use which the parties understood when they made the contract would be lawful only if a public officer exercised legal discretion in favor of such use.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division to the defendant.

Cardozo, Ch. J., Pound, Crane, Andrews, Kellogg and O’Brien, JJ., concur.

Judgment accordingly.


text:
    In the Matter of the Application of the People of the State of New York, by Jesse S. Phillips, as Superintendent of Insurance, for an Order to Take Possession of the Property and Assets of the Casualty Company of America. In the Matter of the Claim of Maxwell Rubin, Appellant; The Superintendent of Insurance of the State of New York, Respondent.
    Insurance companies —• liquidation —• Superintendent of Insurance — attorneys — services — attorney employed by Superintendent of Insurance upon liquidation of insurance company — Superintendent not clothed with authority of arbitrator to fix value of services — summary petition for allowance of claim for services to receiver may be made to Supreme Court —■ erroneous holding that court had no power to increase award made by Superintendent — court has power to liquidate claim and direct its payment from the assets.
    1. Subdivision. 6 of section 63 of the Insurance Law (Cons. Laws, eh. 28) authorizing the Superintendent of Insurance, upon liquidation of an insurance company, to employ such counsel as he may deem necessary whose compensation “ shall be fixed by the Superintendent, subject to the approval of the court,” does not clothe the Superintendent, where there is a dispute as to the value of an attorney’s services, with the authority of an arbitrator. Neither expressly nor by reasonable implication are those who deal with him advised that in the act of so dealing they have clothed him with judicial power and consented to accept what he may be willing to award.
    2, One who supplies services upon the winding up of a business at the hands of a receiver may apply to the court by summary petition for the allowance of his claim and for payment upon allowance.
    3. Upon petition, therefore, to the Supreme Court, by an attorney, for a determination of the amount due him for services rendered in connection with the liquidation of the business of an insurance company, upon retainer by the Superintendent of Insurance, a holding that the court had no power to increase the award made by the Superintendent was erroneous. The power of the court to liquidate the claim and direct its payment from the assets does not depend upon the power of approval reserved by subdivision 6 but is incidental to the supervision and direction of the-course of liquidation (§ 63, subd. 3). The power to supervise and direct the time and method of liquidation is a power to determine the extent and validity of claims arising in the course of liquidation and growing out of its necessities.

      Matter of Casualty Co. of America (Rubin Claim), 217 App. Div. 681, reversed.
    (Argued January 18, 1927;
    decided February 23, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1926, which modified and affirmed as modified an order of Special Term fixing the compensation to be paid to claimant by the Superintendent of Insurance, as official liquidator of an insurance company, for legal services rendered in the course of liquidation.

      E. Crosby Kindleberger and Hamilton Rogers for appellant.
    The statute gives the court full power to review and change an unreasonable fixation of attorneys’ fees by the Superintendent of Insurance. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury, 208 N. Y. 421; People v. Guiton, 210 N. Y. 1; People ex rel. N. Y. C. & H. R. R. R. Co. v. Purdy, 167 App. Div. 637; 216 N. Y. 704; Wiley v. Solvay Process Co., 215 N. Y. 584; Woollcott
      v. Shubert, 217 N. Y. 212; People v. Kaye, 212 N. Y. 407; City of New York v. Davis, 7 Fed. Rep. [2d] 566; People ex rel. Hallock v. Hennessy, 205 N. Y. 301; Matter of Meyer, 209 N. Y. 386; Assets Realization Co. v. De Frees, 225 Ill. 508.) The Superintendent of Insurance was a receiver and the present act has not changed the rule that a court may disapprove and change the acts of its receivers. (Matter of People [City Equitable Fire Insurance Co.], 238 N. Y. 147; Smith on Receivers, § 634; Weeks v. Weeks, 106 N. Y. 626; Chicago Deposit Vault Co. v. McNulta, 153 U. S. 554; Stuart v. Boulware, 133 U. S. 78; Northern Finance Corp. v. Byrnes, 5 Fed. Rep. [2d] 11; Eames v. H. H. Claflin, 231 Fed. Rep. 693; Clark on Receivers, 1037, § 973; Seligman v. Friedlander, 199 N. Y. 373; North British & Mercantile Ins. Co. v. Merchants’ National Bank, 161 App. Div. 341; Kleinman v. Chase National Bank, 124 Misc. Rep. 173.) The appellant was not required to bring an action. (Martin v. Camp, 219 N. Y. 170; Matter of Dunn, 205 N. Y. 398; Andrewes v. Haas, 214 N. Y. 255; Matter of City of New York, 219 N. Y. 192; Greenberg v. Remick & Co., 230 N. Y. 70; Robinson v. Rogers, 237 N. Y. 467.)

      William J. Cahill and Clarence C. Fowler for respondent.
    The jurisdiction of the Supreme Court should not be asserted in this proceeding to fix directly compensation of counsel where the statute directly provides for a fixation by the Superintendent of Insurance. (Donaldson, Insurance Commissioner, v. Jefferson Fire Insurance Co., Commonwealth Docket, 1921; Filene’s Sons v. Ward, 245 U. S. 597.) The liquidator under the provisions of the statute is not a receiver, and the process of liquidation thereunder is administrative only. (Matter of Union Bank, 176 App. Div. 477; Matter of Knickerbocker Life Ins. Co., 199 App. Div. 503; Van Tuyl v. Scharman, 208 N. Y. 53; Lafayette Trust Co. v. Beggs, 213 N. Y. 280; Martyne v.
      American Union Fire Insurance Co., 216 N. Y. 183; Matter of Chetwood, 165 U. S. 443; Matter of Earl, 92 Fed. Rep. 202; High on Receivers [4th ed.], 445.) The order of Special Term substituted judicial discretion and authority for statutory direction. (Osborn v. U. S. Bank, 22 U. S. 737; Tripp v. Cook, 26 Wend. 152; Smith & Sons, etc., v. Ball, 122 N. Y. Supp. 187; People ex rel. Harris v. Land, etc., 149 N. Y. 26; Louisiana v. McAdoo, 234 U. S. 627.) The words “ subject to the approval of the court ” in subdivision 6 of section 63 are no authority for the motion to fix compensation herein by the Supreme Court or for the order which was appealed from. (Doty v. Lyman, 44 N. E. Rep. 337; Matter of Norske Lloyd Ins. Co., 242 N. Y. 148.)
   Cardozo, Ch. J.

An order of the Supreme Court directed the Superintendent of Insurance to liquidate the business of the Casualty Company of America; a domestic corporation. Maxwell Rubin, a member of the bar, was retained by the liquidator to take charge of an important law suit. Nothing was said at the time of the employment about the amount to be paid. The services began in March, 1923, and continued till the end of December, 1924. In the meantime the Superintendent in office at the time of the retainer had been superseded by another, whose term of office began after the chief services were over. Mr. Rubin put in a bill for $8,500, a balance arrived at after valuing the services at $10,000 and crediting $1,500 paid upon account. The Superintendent rejected the bill as excessive. He fixed the value of the services at $3,500, and the balance then due at $2,000. The claimant, dissatisfied, petitioned the Supreme Court to determine what was due. The court held, after a preliminary reference, that the services were worth $8,000 (which left the balance due $6,500), but remitted the matter to the liquidator to value the services again in the light of the court’s opinion. The liquidator, unmoved, reaffirmed Ms valuation. Upon a second motion, the court again disapproved the action of the liquidator, again fixed the value at $8,000, and ordered payment accordingly. There followed an appeal to the Appellate Division. The order was there modified by re-establisMng the Superintendent’s valuation. The court did not hold that the award was adequate. The holding was that there was no power to increase it. TMs was thought to follow from provisions of the statute (Ins. Law, § 63, subd. 6; Cons. Laws, ch. 28). As between liquidator and claimant, the former, in the view of the Appellate Division, had been made the final judge of the value of the services. The court might cut down. It had no power to enlarge.

The liquidation of insurance companies in tMs State is governed by a statute adopted, in its main features, in 1909. The system of liquidation by receivers specially appointed had proved to be dilatory and wasteful. The Legislature substituted admimstration by a department of the government. Upon the application of the Superintendent of Insurance, an- order may be made by the Supreme Court for the liquidation of the business. The work is to be done by the Superintendent and Ms deputies, but under the supervision of the court, and subject to its , direction. “ Such liqmdation shall be made by and under the direction of such superintendent, and Ms successors m office, who may deal with the property and business of such corporation in their own names as superintendents, or in the name of the corporation, as the court may direct” (L. 1909, ch. 300, § 63, subd. 3). Where the business to be liquidated is that of a foreign corporation the rights and duties of the Superintendent are those of an ancillary rece ver (§ 63, subd. 5; Matter of People [City Eq. Fire Ins. Co.], 238 N. Y. 147). There may be rules and regulations with a view to orderly admimstration, but these, too, are to be subject to the approval of the court” (§ 63, subd. 7). Assistants may be employed, and other expenses incurred, but again the approval of the court ” is to be a check upon waste (§ 63, subd. 6). “ For the purpose of this section, the superintendent shall have power to appoint, under his hand and official seal, one or more special deputy superintendents of insurance, as his agent or agents, and to employ such counsel, clerks and assistants as may by him be deemed necessary, and give each of such persons such powers to assist him as he may consider wise. The compensation of such special deputy superintendents, counsel, clerks and assistants, and all expenses of taking possession of and conducting the business of liquidating any such corporation shall be fixed by the superintendent, subject to the approval of the court, and shall, on certificate of the superintendent, be paid out of the funds or assets of such corporation.”

We do not read this subdivision as clothing the Superintendent with the authority of an arbitrator. If he is an arbitrator to fix the value of the services of counsel or assistants, he may fix with like finality the value of supplies such as stationery and coal, or even the rental to be paid for the occupation of an office. His authority, whatever it is, extends to “ all expenses of taking possession of and * * * liquidating ” the business. We cannot bring ourselves to believe that those who deal with a liquidator as employees or as vendors or as landlords of a building are to be held, upon the basis of this curt and indefinite enactment, to have made him as against themselves a judge in his own cause. The enactment, as we view it, was framed to meet the needs of a different situation. The liquidator may find it convenient in the administration of the business to hire deputies or clerks or counsel at an agreed rate of compensation, or to attain a like result, when agreement has been omitted in advance, by the approval of a bill or the settlement of an account, the approval or the settlement being ineffective without the creditor’s assent. He may find it convenient, Avhen incurring other expenses, to follow the same course. He has authority under the statute to do this if he will. The statute is notice to him, however, and to any one who deals with him, that the agreement, whatever its form, is of merely provisional validity. He may fix the rate of compensation as a trustee or an assignee for creditors or a receiver may be said to fix it (cf. L. 1903, ch. 336, § 9), but subject at all times to the approval of the court. The meaning is that even when he acts, the court shall have a veto. On the other hand, there may be times when he will find it convenient or economical, when incurring an obligation, not to fix a rate at all. He may occupy a building or buy supplies or hire clerks or counsel without agreement of any kind except the one implied by law that the compensation shall be fair. When an account is afterwards submitted, he may be unwilling to approve. We cannot read the statute as vesting him with power in such a case to fix the payment as a judge, and, what is more, to fix it finally, exempt from all review. A power so extraordinary must rest upon explicit grant (Maxwell on Interpretation of Statutes, pp. 149, 152; Fisher v. Blight, 2 Cranch, 358, 390). There should be warning, and warning unmistakable, that whoever deals with a liquidator upon the basis of an implied agreement consents to abide by the sense of fairness of the debtor in the appraisal of the value, and foregoes to that extent the protection of the courts. We cannot find such warning in this indefinite enactment.

The power of the court to liquidate this claim and direct its payment from the assets does not depend upon the power of approval reserved by subdivision 6 where the amount has been fixed by the liquidator through agreement with the creditor or with the creditor’s consent. The power is incidental to the supervision and direction of the course of liquidation (§ 63, subd. 3). By the settled practice of the Court of Chancery, one who supplies services upon the winding up of a business at the hands of a receiver may apply to the court by summary petition for the allowance of his claim and for payment upon allowance (High on Receivers; § 254-b; 19 Abb. N. C. 371 et seq., note). We cannot doubt that a like jurisdiction, and one equally summary, exists today as an incident to the judicial supervision of the liquidation of an insurance company by the statutory liquidator. There was some suggestion in the court below that the claimant’s remedy, if any, was a remedy by action, and not by motion or petition. The boon of prompt and economical administration would be needlessly sacrificed if this suggestion were accepted. The power to supervise and direct the time and method of liquidation is a power to determine the extent and validity of claims arising in the course of liquidation and growing out of its necessities.

Argument is made that what the liquidator does in fixing the value of a service, if not exempt altogether from review by the courts, must be held to be exempt unless power and discretion have been flagrantly abused. When he is merely wrong, the court is helpless, but when he is very wrong indeed, its authority is restored. There can be no basis for this distinction unless it be in the assumption that the Superintendent is an arbitrator whose award is not impeachable for error in the determination of the merits, but impeachable only for mistake appearing upon the face thereof, or for fraud, or abdication of duty equivalent to fraud (Fudickar v. Guardian M. L. Ins. Co., 62 N. Y. 392; Sweet v. Morrison, 116 N. Y. 19, 33; Matter of Burke, 191 N. Y. 437, 440; Davis v. Henry, 121 Mass. 150, 154; 3 Williston, Contracts, § 1929-a). But an arbitrator he is not, as we have already sought to show. Neither expressly nor by reasonable implication are those who deal with him advised that in the act of so dealing they have clothed him with judicial power, and consented to accept what he may be willing to award. In the case now at hand, his attempted exercise of power has resulted in an appraisal whereby services have been estimated at only 43% per cent of their value as now judicially determined. Terms more distinct than any to be found in this enactment must stamp him a judge before the courts will be shorn of the power of supervision that would otherwise be theirs.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court.

Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur.

Ordered accordingly.


author: Crane, J. Lehman, J.

text:
    The People of the State of New York, Respondent, v. Joseph Gowasky et al., Appellants.
    Crimes — constitutional law — trial — statute providing for increased punishment for one convicted of felony who has been previously so convicted fconstitutional — prisoner should be informed by judge of right to jury trial as to identity ■ — • waiver of right by attitude of counsel — identity only thing to be tried by jury — plea should not be taken under circumstances leading prisoner to believe he may obtain a lower sentence —■ punishment fixed by statute and not in discretion of court nor district attorney.
    1. Sections 1941, 1942 and 1943 of the Penal Law, as amended by-chapter 457 of the Laws of 1926, providing for increased punishment for one convicted of a felony if he has been previously so convicted, are constitutional and are not invalidated by the method provided of charging a prisoner after conviction, not before, with having been previously convicted of crime. (People v. Sickles, 156 N. Y. 541; People v. Rosen, 208 N. Y. 169, discussed.)
    2. The provision in section 1943 that the judge before whom the prisoner is taken shall inform him of the allegations of previous convictions, “ and of his right to be tried as to the truth thereof,” is not a mere formality which may be brushed aside as unnecessary. It should be done because the statute says so. The requirement, however, may be waived and where prisoners were represented by counsel who pleaded guilty for them but insisted that the statute was unconstitutional, which was the only point he raised, no claim being made that they were not the individuals previously convicted, the attitude of counsel amounted to a waiver of their right to be told that they could have a jury trial if they denied the statements in the information.
    3. All requirements of the section must be followed but the only thing to be tried before a jury is the identity of the prisoner. His guilt or innocence under the previous convictions does not enter into the case.
    4. District attorneys must be careful not to take a plea from a prisoner of a lesser degree of crime under circumstances which may lead him to believe that he is not to be dealt with as a second offender and especially should there be no intimations of a lower sentence for a plea, as neither the court nor district attorney have any discretion under section 1943 of the Penal Law regarding the punishment, which is fixed by statute, not by the court.

      People v. Gowasky, 219 App. Div. 19, affirmed.
    (Argued January 24, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Cóurt in the first judicial department, entered December 31, 1926, which unanimously affirmed a judgment of the Court of General Sessions in the county of New York rendered upon a plea by the defendants of guilty of the crime of burglary in the third degree and sentencing them to life imprisonment as fourth offenders.

      Samuel Bacidar for Joseph Gowasky, appellant.
    The action of the court in holding the defendants to answer the informations filed against them as fourth offenders without presentment or indictment of a grand jury and sentencing them as such was unconstitutional and void; and sections 1942 and 1943 of the Penal Law, pursuant to which the court purported to hold and sentence the defendants, are in contravention of the provision of section 6 of article 1 of the New York Constitution guaranteeing that no person shall be held to answer for an infamous crime unless on presentment or indictment of a grand jury, and are, therefore, unconstitional and void. (Commonwealth v. Alger, 7 Cush. [Mass.] 53; Colon v. Lisk, 153 N. Y. 188; Ives v. South Buffalo Railway Co., 201 N. Y. 271; Wulfsohn v. Burden, 241 N. Y. 299; McDonald v. Massachusetts, 180 U. S. 311; State v. Graham, 68 W. Va. 248; People v. Rosen, 208 N. Y. 169; People ex rel. Cosgriff v. Craig, 195 N. Y. 190; People v. Sickles, 156 N. Y. 541; People v. Kaminsky, 208 N. Y. 389.) The acceptance by the court of the defendants’ plea of guilty of a lesser offense than they were charged with in the indictment convicted the defendants specifically of the crime of attempted burglary in the third degree, as first offenders only, and, therefore, the trial court had no power to impose any other penalty than the one provided by sections 407 (3) and 261 (2) of the Penal Law. (People v. Rosen, 150 App. Div. 595; People v. Bretton, 144 App. Div. 282; People v. Sickles, 156 N. Y. 541; People ex rel. Cosgriff v. Craig, 195 N. Y. 190; Johnson v. People, 55 N. Y. 512; People v. Jordan, 125 App. Div. 522; Matter of Kenny, 23 Misc. Rep. 9; People v. Young, 1 Caines, 37; Gibson v. People, 5 Hun, 542; People v. Cook, 45 Hun, 37.) Section 1942 is either mandatory or discretionary. If it is mandatory, then this section is arbitrary and oppressive judicial legislation which leaves no judicial discretion on the part of the judge and is, therefore, repugnant to the spirit of American jurisprudence and contrary to the decisions of the Court of Appeals, and section 1944 of the Penal Law is contradicted and nullified. If it is discretionary then the court erred in construing the statute as being mandatory instead of permissive. (People v. New York Central R. R. Co., 29 N. Y. 418; Kelso v. Lorillard, 85 N. Y. 177; Matter of Baer, 147 N. Y. 348; Munro v. State of New York, 223 N. Y. 208; Stone v. Pratt, 90 Hun, 42; People v. Bailey, 103 Misc. Rep. 366; Jenkins v. Putnam, 106 N. Y. 272; Matter of Davies, 168 N. Y. 103; Matter of Thurber, 162 N. Y. 244; Matter of Rutledge, 162 N. Y. 31.) The trial court committed error by examining the defendants under section 485-a of the Code of Criminal Procedure without cautioning them of the intention to take proceedings against them under sections 1942 and 1943 of the Penal Law, and the failure so to caution them was a violation of the express provisions of section 1943 of the Penal Law. (People v. Mondon, 103 N. Y. 211; People v. Ferola, 215 N. Y. 285; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; Silverthorne Lumber Co. v. U. S., 251 U. S. 385.)

      James Marshall for Theodore Hemerlien, appellant.
    The action of the court in holding the defendant Hemerlien to answer to the information filed against him as a fourth offender without presentment or indictment of a grand jury and sentencing him as such was unconstitutional and void; and sections 1942 and 1943 of the Penal Law, pursuant to which the court purported to hold and sentence the defendant, are in contravention of the provisions of section 6 of article I of the New York Constitution guaranteeing that no person shall be held to answer for an infamous crime unless on presentment or indictment of a grand jury, and are, therefore, unconstitutional and void. (People v. Kaminsky, 208 N. Y. 389; Ex parte Wilson, 114 U. S. 417; Jones v. Robbins, 8 Gray, 329; United States v. Moreland, 258 U. S. 433; People ex rel. Cosgriff v. Craig, 195 N. Y. 190; Avery v. Everett, 110 N. Y. 317; People v. Rosen, 208 N. Y. 169; People v. Cucchiara, 209 App. Div. 326; People v. Bretton, 144 App. Div. 282; Johnson v. People, 55 N. Y. 512.) Even if an indictment were unnecessary it was error to examine the defendant Hemerlien under section 485-a of the Code of Criminal Procedure without cautioning him of the intention to take proceedings against him under sections 1942 and 1943 of the Penal Law, for the court’s failure so to caution him violated the express provisions of section 1943 of the Penal Law. If such examination did not violate section 1943 of the Penal Law then this proceeding and that section are unconstitutional and void on the grounds that the defendant Hemerlien was compelled to be a witness against himself in a criminal proceeding and was deprived of liberty without due process of law. (People v. Rosen, 208 N. Y. 169; Matter of Bretton, 144 App. Div. 282; People v. Cucchiara, 209 App. Div. 326; People ex rel. Barone v. Fox, 144 App. Div. 611; 202 N. Y. 616; Matter of Kenny, 23 Misc. Rep. 9; 30 App. Div. 624; People v. Ferola, 215 N. Y. 285; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; Silverthorne Lumber Co. v. U. S., 251 U. S. 385; Counselman v. Hitchcock, 142 U. S. 547.)

      Joab H. Banton, District Attorney {Robert C. Taylor of counsel), for respondent.
    Sections 1942 and 1943 of the Penal Law are constitutional. (Graham v. W. Va., 224 U. S. 616.)
   Crane, J.

When People v. Sickles (156 N. Y. 541) was argued in this court, counsel for the appellant claimed that it was very unfair and prejudicial to the defendant for the People to prove his previous bad character and his conviction of other crimes before he had been found guilty of the crime for which he was being tried. There was some merit in the claim that it was no proof that the defendant had committed the act charged, because some time in his past life he had been guilty of other offenses. This court, however, held in that case, following the earlier decisions, that the People must not only allege in the indictment the previous convictions, but must also prove them on the trial, in order to convict the defendant as a second offender. This was due to our statutory provisions and the practice which had grown up under them. In the opinion, this court called attention to the change which had been made in the English practice in this particular, saying:

Under the present English practice, as changed by an act passed in 1837, the principal charge must be first passed upon by the jury and then the proof is to be presented of the former conviction. That may be fairer procedure from the prisoner’s standpoint; but, as Chief Judge Church . observed, in Johnson v. People, in adverting to the English practice, ‘we have no such statute.’ In the absence of legislation, effecting a change in the Code of Criminal Procedure, there is no warrant for departing from its requirements. The very fact, that in England it was necessary to enact a statute to remedy what was, probably, deemed a defect in criminal procedure at the common law, tends to show that, until legislation has changed the rule, it is essential that the prior conviction be proved by the People as a part of the case against the prisoner.”

The English practice referred to first found embodiment in the Statute of 5 and 6 William IV, chapter 111, as stated in Regina v. Shrimpton (3 Car. & Kir. Rep. 373). Thereafter, previous convictions could not be proved before the jury until after the new charge had first been disposed of. The previous practice of proving old offenses on the trial of the new charge was thought likely to prejudice the prisoner. (See, also, Regina v. Shuttleworth, 3 Car. & Kir. Rep. 375.)

The Statute of 24 and 25 Victoria, chapter 96, section 116 (year 1861) provided in substance that in any indictment for an offense committed after a previous conviction of a felony, it should be sufficient after charging the subsequent offense to state that the offender was at a certain time and place convicted of a felony without otherwise describing the previous felony. The act then provided:

The Offender shall, in the first instance, be arraigned upon so much only of the Indictment as charges the subsequent Offence, and if he plead Not Guilty, or if the Court order a Plea of Not Guilty to be entered on his Behalf, the Jury shall be charged, in the first instance, to inquire concerning such subsequent Offence only; and if they find him Guilty, or if on Arraignment he plead Guilty, he shall then, and not before, be asked whether he had been previously convicted as alleged in the Indictment,” etc.

In this country the matter had been viewed from another angle. No one ever doubted the wisdom or justice of punishing a second or third offender more severely than a first offender. Many times it was difficult to find out who the prisoner was, and whether he had been previously convicted of crime. Frequently, he assumed a false name and posed as a first offender when in reality he had been in prison many times before. This situation was met very early in Massachusetts in the Laws of 1817 and 1818, chapter 176, page 602, which provided increased punishment for second and third offenders. Stating that whereas at the time of the indictment and trial of the person charged with crime, it may not be known to the grand jury or the attorney for the Commonwealth whether the person so charged had been before convicted or not, the statute provided:

That whenever it shall appear to the Warden of the State Prison, * * * that any convict, received into the same, pursuant to the sentence of any Court, shall have before been sentenced, by competent authority of this or any other state, to confinement to hard labor for term of life or years, it shall be the duty of the said Warden, * * * to make representation thereof, as soon as may be, to the Attorney or Solicitor General; and they or either of them shall, by information, or other legal process, cause the same to be made known to the Justices of the Supreme Judicial Court, * * * and the said Justices shall cause the person or persons, so informed against, to be brought before them, in order, that if he deny the fact of a former conviction, it may be tried according to law, whether the charge contained in such information be true. And if it appear by the confession of the party, by verdict of the jury, or other-' wise, according to law, that said information is true, the Court shall forthwith proceed to award against such convict, the residue of the punishment provided in the foregoing section; otherwise the said convict shall be remanded to prison, there to be held on his former sentence.”

Under this statute a prisoner previously convicted was brought before the court on an information filed by the warden of his jail, and given an additional or increased sentence, it having been ascertained that he was an old offender. (Ross Case, 2 Pick. 165, year 1824.)

In Graham v. West Virginia (224 U. S. 616) the Code of Wert Virginia was before the court which embodied the substance of- the Massachusetts statute. It was there said that the statutes were derived from the laws which were in force in Virginia before West Virginia was created, and formed part of the Code of Virginia of 1860, chapter 199, which in turn had been taken from the Code of 1849, chapter 199. The West Virginia Code, chapter 152, sections 23 and 24, provided an additional sentence of five years for a prisoner previously sentenced to the penitentiary, and a life imprisonment if twice before sentenced to such imprisonment. The Code then provided, following the Massachusetts statute, as follows:

“ 2. When a prisoner convicted of an offense, and sentenced to confinement therefor in the penitentiary, is received therein, if he was before sentenced to a like punishment, and the record of his conviction does not show that he has been sentenced under the twenty-third or twenty-fourth section of chapter one hundred and fifty-two, the superintendent of the penitentiary shall give information thereof, without delay, to the said circuit court of the county of Marshall, whether it be alleged or not in the indictment on which he was so convicted, that he had been before sentenced to a Ike punishment.

“3. The said court shall cause the convict to be brought before it, and upon an information filed, setting forth the several records of conviction, and alleging the identity of the prisoner with the person named in each, shall require the convict named to say whether he is the same person or not.

“4. If he say he is not, or remain silent, his plea, or the fact of his silence, shall be entered of record and a jury shall be empaneled to inquire whether the convict is the same person mentioned in the several records.

“ 5. If the jury find that he is not the same person, he shall be remanded to the penitentiary; but if they find that he is the same person, or if he acknowledge in open court, after being duly cautioned, that he is the same person, the court shall sentence him to such further confinement as is prescribed by chapter one hundred and fifty-two, on a second or third conviction, as the case may be.”

The United States Supreme Court held this Code to be constitutional.

These laws and decisions of other States I have referred to and quoted in order to show that the action of the State of New York in adopting chapter 457 of the Laws of 1926, amending sections 1941, 1942 and 1943 of the Penal Law, commonly known as the “ Baumes Act,” was nothing new. The practice was a century old. Either out of fairness to the prisoner or else for public safety, the method of charging a prisoner after conviction, not before, with having been previously convicted of crime, and sentencing him accordingly, was well-known to the law.

This court, in People v. Rosen (208 N. Y. 169, decided 1913), again held, following the Sickles Case (supra), that in order to convict a prisoner as a second offender and give him increased punishment, it was necessary to allege his previous convictions in the indictment and to prove them on the trial. Now we have changed all this and adopted the other practice. Previous convictions need not be alleged in the indictment, nor proved upon the trial of the new charge. This to me seems eminently fair to any prisonej. When he is charged and tried for a crime, his previous record may not be used to influence the jury to convict him of that crime. The proof against him is to be the same as if he were a first offender, unless possibly he takes the stand. But when he is convicted, then comes the question of his sentence, and he is no longer to be treated as a first offender. He may then for the first time be confronted with his record, and sentenced to a severer punishment, as he should be, if it turns out that he has previously transgressed the law. The old practice is still permissible; the indictment, as formerly, may plead the prior convictions, and proof of them may be given at the trial under such pleading, but it is no longer necessary. The indictment may charge only the new •offense for which the prisoner is to be tried; on the trial the People will not and cannot offer as part of their case previous convictions. When, however, the trial is over, and the defendant stands convicted, then the previous record must be considered in determining the sentence. Prior convictions logically and in fact have little or nothing to do with proof of the defendant’s guilt of a new crime; a man is not guilty of breaking the law merely because he has broken it before; but when the proof shows him to be guilty, then his past acts have much to do with the way he should be treated. The punishment for the second offense is increased because of his apparent persistence in the perpetration of crime and his indifference to the laws which keep society together; he needs to be restrained by severer penalties than if it were his first offense.

Sections 1942 and 1943 read as follows:

“ Sect. 1942. Punishment for fourth conviction of felony.

“A person who, after having been three times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which if committed within this state would be felonies, commits a felony within this state, shall be sentenced upon conviction of such fourth, or subsequent, offense to imprisonment in a state prison for the term of his natural life. A person to be punishable under this and the preceding section need not have been indicted and convicted as a previous offender in order to receive the increased punishment therein provided, but may be proceeded against as provided in the following section.

“ Sect. 1943. Procedure relating to resentencing.

“If at any time, either after sentence or conviction, it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth either in section nineteen hundred and forty-one or nineteen hundred and forty-two, it shall be the duty of the district attorney of the county in which such conviction was had to file an information accusing the said person of such previous convictions. Whereupon, the court in which such conviction was had shall cause the said person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. If he says he is not the same person or refuses to answer, or remains silent, his plea, or the fact of his silence, shall be entered of record and a jury shall be empanelled to inquire whether the offender is the same person mentioned in the several records as set forth in such information. If the jury finds that he is the same person or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he is the same person, the court shall sentence him to the punishment prescribed in said sections nineteen hundred and forty-one and nineteen hundred and forty-two, as the case may be, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated. Whenever it shall become known to any warden or prison, probation, parole, or police officer or other peace officer that any person charged with or convicted of a felony has been previously convicted within the meaning of said sections nineteen hundred and forty-one or nineteen hundred and forty-two, it shall become his duty forthwith to report the facts to the district attorney of the county.”

Section 1941 provides the punishment for a second or third felony. Chapter 457, Laws of 1926, changed the words any crime ” to any felony.” Now if a person commits any felony (not any “ crime ”) he must receive increased punishment if previouly convicted of felony. Section 1942 provides life imprisonment for the fourth felony. It is unnecessary, however, in any case to allege the previous convictions in the indictment. Under the procedure of section 1943 a second or third offender is to be sentenced as provided in section 1941. If he is a fourth offender, he is to be sentenced according to the provisions of section 1942. These so-called Baumes Laws ” do not deal merely with life imprisonment for fourth offenders; they reach out also to those convicted for the second and third time.

We find nothing unconstitutional in these amendments of 1926. Similar provisions, as has been stated, have existed for a long time in other jurisdictions, and the courts have uniformly held them to be legal. Our own decisions have strongly intimated, if not directly stated, that the matter was subject to legislative control. Such is to be gathered from our statement in the Sickles case, which I have quoted above, and from the Rosen case, wherein Chief Judge His cock said:

“ It may also be assumed that the legislature might, provide for an independent trial of the question whether a convicted person had been convicted of a prior offense and make an affirmative determination reached in such proceedings the basis for the additional punishment on the last conviction, although such prior offense had not been charged in the indictment for the later crime. (McDonald v. Massachusetts, 180 U. S. 311; Graham v. State of West Va., 224 U. S. 616.) But it is sufficient for the purposes of this discussion to say that no such provision has been made.”

We will pass to the next point which has been raised. The judge, it is said, did not follow the provisions laid down in section 1943 of the Penal Law. Of course this law is to be followed in all its terms and provisions. The Legislature has enacted what shall be done, and the courts and juries must comply with it. Opinions regarding the wisdom or severity of its enactments are matters for the Legislature, not the courts.

These two defendants had previously been convicted six times. After their last conviction they were brought before the trial judge on an information filed by the district attorney, setting out their previous convictions in full. They were informed of the allegations contained in the information, and required to say whether they were the persons mentioned. The record fails to state whether the judge informed them of their right to be tried by a jury as to the truth of the charge. This should have been done because the statute says so. It is not a formality which is to be brushed aside as unnecessary. It is a requirement, however, which may be waived either expressly or by implication. Even a constitutional provision for the benefit of a prisoner may be waived. (Diaz v. U. S., 223 U. S. 442.)

In our judgment this requirement was waived in this case. The prisoners were represented by counsel who pleaded guilty for them to the charges in the information, insisting, however, that the amendments to the Penal Law were unconstitutional, and that the court had no right to sentence the defendants to life, as the indictments did not contain a statement of the previous convictions. This was the one and only point the counsel raised before the trial judge. He was told by the judge that if the defendants had denied their identity or that they were the individuals previously convicted, they then could contest the matter before a jury. No claim was made at any time that they were not the proper individuals, and rightly charged. Under these circumstances, we think that this omission on the part of the judge was due largely to the attitude of the defendants’ counsel and amounted to a waiver of the defendants’ right to be told that they could have a jury trial if they denied the statements in the information.

However, again let us call attention to the necessity of following all the requirements of this section. The prisoner is entitled upon the presentation of the information to be informed of his right to be tried as to the truth thereof. But it should also be noted that there is a limitation to this right. The only thing that is to be tried before a jury is the identity of the prisoner. By the information he is charged with having been previously convicted. If he denies it, his previous conviction is the only thing to be tried. Is he the same person mentioned in the several records as set forth in the information? This is the only question to be submitted to .the jury, and the only question which they are to answer by their verdict. The guilt or innocence of the defendant under the previous convictions does not enter into the case at all. It is a simple matter and should not be confused in the minds of the jury by any .suggestions of consequences which may follow from their finding. My experience with juries has been that they generally do their duty when it is made clear to them.

Another matter we must call to the attention of prosecuting attorneys arising in this case on another point made by the appellants’ counsel. They were charged with burglary in the third degree, and for some reason took a plea of an attempt to commit burglary in the third degree. The record fails to show that this was not entirely proper; we must assume that the plea taken was for the crime of which the defendants were guilty. It is insisted, however, that the defendants took a plea in the lower degree of crime, thinking thereby to receive a fighter sentence than if they had pleaded to burglary in the third degree, and were thereupon unexpectedly sentenced to fife imprisonment. District attorneys must be careful not to take a plea from a prisoner of a lesser degree of crime under circumstances which may lead him to believe that he is not to be dealt with as a second •offender. This is fair to any man, no matter how bad he may be. The new crime charged against him must first be proved before he can be treated as a second offender. If he knowingly pleads guilty, this takes the place of proof, and he must stand the consequences of his previous bad record. Where there is any misunderstanding as to the circumstances under which a plea of guilty was taken, the judge might very well exercise his discretion, permit the pleas to be withdrawn and place the defendant on trial. All of which means that these laws are to be administered fairly on all sides, that they may accomplish the end which the Legislature had in view. ■

Especially should there be no intimations of a lower sentence for a plea, as neither the court nor district attorney have any discretion under section 1943 of the Penal Law regarding the punishment. This is fixed by statute, not by the court. The district attorney is charged with the duty of fifing an information accusing the convicted defendant of his previous convictions. Tins is not discretionary; it is mandatory. Even prison officials are under duty to report the records of prison inmates when they have been sentenced under a misapprehension of being first offenders. The section also states what the court shall do. The court shall sentence second and fourth offenders to the punishment prescribed in said sections nineteen hundred and forty-one and nineteen hundred and forty-two, as the case may be.” The word “ shall ” in this connection means the same as the word must ” in section 1941. I do not believe that the Legislature intended to make the sentence provided in section 1941 mandatory as to second and third offenders, and that of section 1942 discretionary as to fourth offenders. Neither did the use of the word shall ” in section 1943 modify the compulsory force of the word “ must ” in section 1941. If the information charges one previous conviction, and it *be true, the court “ shall ”■ sentence to the punishment prescribed in section 1941; which says that “ such person must be sentenced to imprisonment for a term not less than the longest term,” etc. This word “ shall ” as thus used in section 1943 leaves no discretion in this particular to the court or judge.

This may work extreme hardship in certain cases where the sentencing judges would be justified in feeling that the punishment was too severe for the nature and circumstances of the crime or crimes committed, but these are matters for the Legislature or the Executive. Courts have no inherent power to modify statutes to meet exceptional cases. Courts declare the law as it is.

The judgment should be affirmed.

Lehman, J.

(dissenting). I concur fully in the opinion of Judge Crane, except as to those parts which deal with the question of whether these defendants have waived their right to be tried by a jury, according to law, as to the truth of the information filed against them.

The Legislature has decreed that a person who has committed a felony within this State after having been three times convicted of other felonies shall be sentenced to imprisonment for the term of his natural life. It has determined, as it might do, that an offender who by repeated crimes has shown that he is unfit for liberty shall forever be deprived of his liberty. There may be cases where special circumstances are present which would lead a wise judge to believe that less severe punishment would better fit the crimes committed. A judge may fit the punishment to the crime only where the law leaves room for the exercise of discretion in a particular case. Justice in our courts'may be meted out only according to law. When by act of Legislature the law provides that particular acts shall have definite consequences, there is no room for the exercise of discretion by the court or judge. When the law provides that after four convictions of crime, justice must be unbending and uniformly severe, the court may not temper justice with mercy, nor measure justice by other yardstick than that which the law provides.

The defendants have pleaded guilty to attempt to commit burglary in the third degree. The law makes such plea equivalent to conviction of that offense. In the same statute which provides that sentence of fife imprisonment must follow, if these defendants have previously been three times convicted of a felony, the Legislature has scrupulously guarded against possibility of mistake in imposing such sentence, by provision that after information is filed against them accusing them of previous convictions the offenders shall have the right to trial by jury as to the truth of the allegations contained in the information. These defendants stand in the shadow of a prison which they may perhaps never leave. They have not had such trial, but by their own admission the allegations of the information are true. If the law permits the judge to pass sentence because of such admission; if these defendants have waived their right to be tried by jury in regard to matters which they admit to be true, then the justice meted out to them, though severe, is justice according to the law. If the law provides that sentence may not be imposed till the truth of the information is established in other manner, then the sentence is without warrant in law. Some judges may doubt the wisdom of the law when it provides that sentence of life imprisonment must be imposed upon all persons convicted of felony four times, regardless of the particular circumstances which may differentiate the degree of guilt. Some judges may doubt the wisdom of the law when it provides that such sentence may be imposed only when the previous convictions have been established under safeguards which to them seem unnecessary. In spite of such' doubts, all judges may exércise only those powers which the law gives them. Provision which is made for the protection of the individual that sentence may be imposed only after truth of the allegations of the information has been established under statutory safeguards, is no less binding upon all judges than provision made for the protection of society that when sentence is imposed it shall not vary according to the varying circumstances of each. case.

■ The provisions of the statute as to when sentence may be pronounced are as mandatory as the provisions which fix the sentence. After information has been filed the court must bring the offender before it and “shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. If he says he is not the same person or refuses to answer, or remains silent, his plea, or the fact of his silence, shall be entered of record and a jury shall be empanelled to inquire whether the offender is the same person mentioned in the several records as set forth in such information. If the jury finds that he is the same person or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, * * * the court shall sentence him to the punishment prescribed in said sections nineteen hundred and forty-one and nineteen hundred and forty-two.” (Italics are mine.) Not until the court has informed the offender of his right to be tried as to the truth of the allegations contained in the information, may the offender be questioned; and as prerequisite to sentence there must be finding of the jury or acknowledgment or confession in open court after the offender has been duly cautioned as to his rights.

The record of all the proceedings on sentence duly certified according to law are before us. They show that the defendants were questioned as to previous convictions and admitted them. They do not show that the accused were informed as to their rights. Sentence was imposed upon their acknowledgment or confession — though such acknowledgment or confession was not made after the caution which the statute in unmistakable language requires, before the court may make it the basis for sentence.

It is said that these defendants have waived the requirement that they be informed of their rights and cautioned, because their counsel did not object on this ground. I will assume that even this provision, intended to safeguard the rights of the offender, may be waived. The law should not be so construed as to require a useless formula. If the offender is shown to have actual knowledge of his rights, information and caution that he may avail himself of them might be regarded as a vain and empty thing. I cannot see how the requirement that he be informed of his rights can be waived by any person unless he knew his rights even without such information. That the offender did know his rights may certainly not be presumed as a basis for waiver of express requirement that he be informed of his rights. That requirement is inserted for the very purpose of protecting a person who may possibly be ignorant of his rights. It negatives any presumption, if such presumption there be, that the offender knows the law. Silence can form basis for waiver only if the offender remains silent when he has knowledge that he may speak. The requirement that an offender be informed and cautioned as to his rights to a trial by jury is the legislative determination that failure to object to sentence without information given by the court as to his rights may not be accepted as a waiver of such rights, and renders admission of the truth of an information made without caution insufficient basis for sentence. Doubtless counsel for the defendants did know of the rights of the defendants. He chose not to insist upon them. We might perhaps speculate why he made that choice. An attorney has authority to represent the accused in most respects, but I can find neither sound reason nor authority for a holding that failure by counsel to raise appropriate objection can be held to be a waiver in behalf of an offender of an express provision that sentence of life imprisonment may be imposed upon acknowledgment by the offender of the truth of the information filed, only if such acknowledgment is made by the offender in open court after being cautioned as to his rights.” Requirement that information and caution as to his rights be given to the offender before acknowledgment of guilt may be accepted as proof, is inserted not once but twice in the statute. If the Legislature had intended that it should apply only when an offender is not represented by 'counsel, the Legislature could have so stated.

It may be argued that since the defendants acknowledge truth of the information, trial by jury of its truth would be a mere formality. That is an argument that might perhaps have appealed to the Legislature; it may not be considered by the court when the Legislature has said acknowledgment or confession may be acted on by the court only when made after caution. Judges may assume that these defendants have been four times convicted of felony when such convictions are established by the records and the acknowledgment of the offender. They may not base sentence upon that assumption when the Legislature forbids. Determination of the truth of the information is in all cases left to the jury, unless acknowledgment or confession is made in open court after caution.

The ideal of justice is that the guilty shall never escape punishment and the innocent shall never be accused falsely or convicted mistakenly. In practice, justice under our law and procedure doubtless falls far short of this ideal, and the guilty at times escape because of rules intended for the protection of the innocent. The courts have doubtless often magnified technical rules of procedure into guarantees of rights assumed to be fundamental, and have created rules which hamper the administration of justice by false assumption that such rules are necessary for the protection of the rights of the accused. Substance has been obscured in a mist of shadowy and deceptive analogy; technicality has pushed aside reason. Courts and Legislature within the respective spheres of their authority are considering in the light of present-day conditions and past experience by what rules we may approach more closely to our ideal of justice. Balance must be found between solicitude lest the accused should be wrongfully punished and insistence that the guilty should not escape. Neither consideration may be ignored. In the case before us the Legislature has acted. It has given a mandate to the courts that they must in certain cases impose sentence of fife imprisonment; but out of solicitude for the accused it has provided that such sentence may be imposed only when truth of the information is established in a certain way. Truth otherwise established gives the court no power to impose the sentence. The courts may not create new technicality to destroy rights guaranteed by law, any more than they may create technicalities to hamper the administration of the law. Justice is done according to law by sentence that the doors of a prison shall forever close upon an accused only when guilt has been established according to law. That has not been done here.

The judgment should be reversed and the case remitted to the Court of General Sessions for resentence after proceeding upon the information in accordance with law.

Cardozo, Ch. J., Pound, Andrews and Kellogg, JJ., concur; Lehman, J., dissents in opinion.

Judgment affirmed.