author: Lehman, Ch. J.

text:
    In the Matter of John J. Murphy, Appellant, against Extraordinary Special and Trial Term of the Supreme Court Appointed to be Held in the County of New York et al., Respondents.
    Argued May 22, 1945;
    decided July 19, 1945.

      Henry Epstein and Daniel H. Prior for appellant.
    I. The
    decision below is in conflict with the express terms, purpose and history of section 355 of the Code of Criminal Procedure. II. Since the enactment of the Code it has been considered beyond question that section 355 bars the People from obtaining a change of venue. I'll. It is the purpose of sections 355 and 344 of the Code to guarantee to the accused a substantial unilateral advantage. (United States v. Johnson, 323 U. S. 273; Olive v. State, 11 Neb. 1; State v. Knapp, 40 Kan. 148; Swart v. Kimball, 43 Mich. 443; Watt v. People, 126 Ill. 9; State v. Crinklaw, 40 Neb. 759; Gut v. Minnesota, 9 Wall. [U. S.] 35.) IV". The statutory history confirms that the Legislature intended to exclude the prosecution from any right to obtain a change of the place of trial. (People v. Vermilyea, 7 Cow. 108; People v. Webb, 1 Hill. 179; People v. Baker, 3 Abb. Pr. 42; Jones v. The People, 79 N. Y. 45; People v. Farini, 239 N. Y. 411; People ex rel. Hirschberg v. Orange Co. Ct., 271 N. Y. 151; People ex rel. Kohut v. Hendrickson, 249 App. Div. 528, 276 N. Y. 563; The Inhabitants of the County of Cumberland v. The King, 3 Bos. & Pul. 354.) V. At common law the prosecution could not move for a change of venue. The common láw of England did not allow the place of trial to be changed in criminal cases without the consent of the accused. (Rex v. Clendon, 2 Str. 911; Rex v. Harris, 3 Burr. 1330; Regina v. Barrett, Ir. Rep. 4 C. L. 285; Queen v. Conway,
      7 Ir. C. L. 507; Queen v. Phelan, 14 Cox C. C. 579; King v. Holden, 5 B. & Ad. 347, 354; Mylock v. Saladme, 1 Bl. W. 480.) VI. The common law rule on horizontal removal has not been impaired by any decision in this State having standing as precedent. (Glinnan v. Judge of Recorder’s Court, 173 Mich. 674.) VII. The great weight of authority in sister States recognizes the common-law rule against horizontal removals at the instance of the prosecution. (People v. Powell, 87 Cal. 348; City of Chicago v. Knobel, 232 Ill. 112; State ex rel. Mabbitt v. Smith, 55 Ind. 385; Glinnan v. Judge of Recorder’s Court, 173 Mich. 674; State v. Dyer, 139 Mo. 199; State v. Crinklaw, 40 Neb. 759; State v. Sautelle, 66 N. H. 488; In re Nelson, 19 S. D. 214; State v. Howard, 31 Vt. 414.) VIII. The Appellate Division erred in holding section 355 to be unconstitutional, if given its patent meaning. (Matter of Estate of Stilwell, 139 N. Y. 337, Goldfinger v. Feintuch, 276 N. Y. 281; People ex rel. Durham R. Corp. v. La Fetra, 230 N. Y. 429; Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261.)

      Nathaniel L. Goldstein, Attorney-General (Harris B. Steinberg, George P. Monaghan, Stanley H. Fuld and Herbert Stern of counsel), for respondents.
    I. The order transferring the place of trial of the indictment was within the power of the Supreme Court. (Comm. v. Davidson, 91 Ky. 162.) II. At common law, the Court of King’s Bench had the inherent power .to grant a change of place of trial at the instance of the prosecution. (Rex v. Norwich, 1 Str. 177; Rex v. Harris, 3 Burr. 1330; Rex v. St. Mary’s, 7 T. R. 735; Rex v. Nottingham, 4 East 208; Rex v. Holden, 5 B. & Ad. 347; Queen v. Conway, 7 Ir. C. L. 507; Regina v. Phelan, 14 Cox C. C. 579; State v. Miles, 43 Idaho 46; Comm. v. Reilly, 324 Pa. 558; Barry v. Truax, 13 N. D. 131.) III. The Supreme Court of New York ha.s always had the inherent power to change the place/ of trial of a criminal case on the People’s motion. (Jones v. The People, 79 N. Y. 45; People v. Vermilyea, 7 Cow. 108; People v. Webb, 1 Hill 179; People v. Bodine, 7 Hill 147; People v. Baker, 3 Abb. Pr. Rep. 42; People v. Farini, 239 N. Y. 411; People v. Page, 182 Misc. 10.) IV. The adoption of the Code of Criminal Procedure has not abrogated the Supreme Court’s jurisdiction to change the place of trial. (Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Farini, 239 N. Y. 411; People v. Wilson, 151 N. Y. 403; People v. Adler, 140 N. Y. 331; People v. Palmer, 109 N. Y. 110; People ex rel. Weeks v. Platt, 173 App. Div. 451.) V. Nor does section 355 of the Code, by implication, abrogate the court’s inherent power to change venue upon the People’s application. (People v. Farini, 239 N. Y. 411; Mattel of Lyons v. Goldstein, 290 N. Y. 19; Bell v. Niewahner, 54 App. Div. 530; Mussen v. Ausable Granite Works, 63 Hun 367; People v. Coughtry, 58 Hun 245, 125 N. Y. 723; Alexander v. Bennett, 60 N. Y. 204; Stokes v. People of the State of N. Y., 53 N. Y. 164; People v. Damon, 13 Wend. 351; Negro Jerry v. Townshend, 2 Md. 274.)
   Lehman, Ch. J.

The Grand Jury of the County of Albany, drawn and impaneled to serve at an Extraordinary Term of the Supreme Court for the County of Albany, appointed to be held by order of the Governor, returned an indictment against the appellant containing twenty-nine counts charging crimes alleged to have been committed in the County of Albany. The Attorney-General then moved at the Extraordinary Term in Albany for an order changing the place of trial of the indictment from the Supreme Court, Albany County, to a term of the Supreme Court in another county on the ground “ that it is impossible to obtain a fair and impartial trial in Albany County ”. The application was granted and an order was made and entered on November 13, 1944, that “ the place of trial of the indictment herein be and the same hereby is removed from the Supreme Court, County of Albany, to the Supreme Court, County of New York ”. An appeal attempted to be taken from the order of removal was dismissed by the Appellate Division of the Third Department on the ground that the order is not appealable. (People v. Murphy, 268 App. Div. 1009.) The Governor appointed an Extraordinary Special and Trial Term to be held in the County of New York “ for the purpose of trying the indictments, or any amendments thereto, heretofore filed in the County of Albany against John J. Murphy ” and other defendants ‘ which were transferred for trial to the County of New York ”. Then the appellant moved in the Appellate Division of the First Department For an order pursuant to the provisions of Article 78 of the Civil Practice Act, and of Sections 1295 and 1300 thereof, prohibiting and restraining the Extraordinary Special and Trial Term of the Supreme Court of the State of New York appointed by proclamation of the Governor dated December 20, 1944, to be held at the Criminal Courts Building, 100 Centre Street, in the County of New York, on the 29th day of January, 1945, from acting without authority and without jurisdiction and in excess of jurisdiction, and from proceeding with the trial of the indictment against the petitioner presented by a Grand Jury of Albany County to the Extraordinary Special and Trial Term of the Supreme County held in the County of Albany on the 28th day of July, 1944, and from entertaining any proceedings in relation to said indictment.” The application was unanimously denied by the Appellate Division and the petition dismissed. The appeal is taken to this court by permission of the Appellate Division. -

The question presented upon the application for an order in the nature of prohibition is whether the order removing the place of trial of the indictment to another county is a nullity because made upon a motion which the court had no power to entertain and upon affidavits and evidence which the court had no power to consider. If the court had power to entertain the motion, error in appraising the probative force of the evidence submitted to sustain the claim of the People that an impartial trial cannot be had in the County of Albany, and even insufficiency of such evidence as matter of law, would not so taint the order of removal as to make it a nullity though such defects might so taint an order that it would inevitably be reversed upon appeal if the order were subject to review by an appellate court. Upon the application for an order in the nature of prohibition pursuant to article 78 of the Civil Practice Act, the only question presented to the Appellate Division and decided by it was whether the Supreme Court has power upon the application of the Attorney-General to order that an indictment returned by the Grand Jury of Albany County charging a crime committed in Albany County be tried in the County of New York before a jury drawn and selected from New York County upon an allegation. and even proof that an impartial trial cannot be had in the County of Albany. If, under the law of the State of New York, an indictment must be tried by a jury of the county in which the indictment was found unless the action is removed to another county upon the application of the defendant no order made by the Supreme Court upon the application of the Attorney-General can confer upon the Extraordinary Term appointed to be held in the County of New York a jurisdiction denied to it by law. In such case an order prohibiting the Extraordinary Term in New York from trying an indictment found in the County of Albany would be proper. Upon this appeal we consider no other question.

The Legislature has in express terms provided that “ on the application of the defendant ” a criminal action prosecuted by indictment may be removed:

“ 1. From a county court to a term of the supreme court . held in the same county, for good cause shown;
2. From the supreme court, or a county court, to a term of the supreme court held in another county, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending.” (Code Crim. Pro., § 344.)

No statute provides that a criminal action prosecuted by indictment may be so removed upon the application of the People and against the opposition of a defendant, but the Attorney-General successfully contended in the Appellate Division that, at common law, the Court of King’s Bench had inherent power to grant a change of place of trial at the instance of the prosecution; that the Supreme Court possesses all the powers of the Court of King’s Bench, and that the express grant to the Supreme Court of power to remove a criminal action “ on the application of the defendant ” should not be construed as a restriction upon the common-law power of the court to remove a criminal action from one county to another upon the application of the People or upon the court’s suggestion. We are told, too, that such a statutory restriction would deprive the Supreme Court of part of its established common-law jurisdiction, in violation of the provision of the Constitution of the State of New York that “ The supreme court is continued with general jurisdiction in law and equity * * (Art. VI, § 1.)

In People v. Farini (239 N. Y. 411), the question was presented whether the express grant to the Supreme Court of power “ on the application of the defendant ” to remove a criminal action “ from a county court to a term of the supreme court held in the same county, for good cause shown ” as provided in subdivision 1 of section 344 of the Code of Criminal Procedure, was intended to deprive the Supreme Court of power upon the application of the People to remove to itself in the same manner a criminal action from a county court in the same county. Recognizing that such a limitation upon the power of removal of the Supreme Court would reverse a practice that has been general since the adoption of the Code and that was concededly allowed before that time,” we said that. “ to effect such a change the intention of the Legislature should be expressed in clear and unmistakable terms.” The court, accordingly, decided that this statutory provision, read in connection with other provisions of the Code of Criminal Procedure and construed in the light of legal history, is “ simply a regulation of the method of removal when the application is made by the defendant. It is not an attempt by implication to deprive the Supreme Court of the well-understood power it had always possessed where the application was made by the prosecution ” (p. 415). (See, also, Jones v. The People, 79 N. Y. 45.) The Appellate Division in the decision which we review upon the instant appeal felt constrained by the authority of our opinion and decision in People v. Farini (supra), to hold that even though subdivision 2 of section 344, like subdivision 1, covers only applications made by a defendant for the removal of a criminal action, the Supreme Court of this State retains a similar power to remove, upon the application of the prosecution, a criminal action “ from the supreme court, or a county court, to a term of the supreme court held in another county, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending.”

Nowhere except in section 344, subdivision 1, can a legislative intention be found to deprive the Supreme Court “ of the well-understood power it had always possessed ” to remove upon the application of the prosecution a criminal action from a county court to a term of the Supreme Court held in the same county, and in People v. Farini (supra), the court passed upon the effect only of section 344. If nowhere in the Code of Criminal Procedure except in section 344 could there be found indications of a legislative intent to limit to cases where the application is made by a defendant, the power of the Supreme Court to remove an indictment to another county on the ground that a fair and impartial trial cannot be had in the county where such indictment is pending and if such power of removal had previously been exercised by the Supreme Court upon the application of the prosecution in accordance with a practice ‘ ‘ that has been general since the adoption of the Code and that was concededly allowed before that time ”, there would, of. course, be force in the suggestion that what we said and decided in People 7. Farini is controlling. In truth, however, the Legislature has declared in section 355 of the Code of Criminal Procedure that “ an issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed, by order of the supreme court, into another county, as provided in the second subdivision of section three hundred and forty-four.” Section 355 is far more than a “ regulation of the method of removal when the application is made by the defendant.” It is a mandate, framed in words that permit no other construction, that an issue of fact in a criminal action must be tried by a jury in the county where an indictment was found, unless the indictment is removed to another county -in accordance with the provisions of subdivision 2 of section 344 of the Code of Criminal Procedure, i.e., “ on the application of the defendant.” That mandate is a guarantee to a defendant of a right to a trial by a jury of the ‘ ‘ vicinage ’ ’ which, as we shall show hereafter, was generally if not invariably accorded to a defendant under the English practice; though the writ of certiorari to remove an action from an inferior court to the Court of King’s Bench there to be tried by a jury of the vicinage where the alleged crime was committed was “ demandable in criminal cases as of right ” by the Crown. (See 1 Holdsworth “ History of the English Law ” 228.) That right of an accused to a trial by a jury of the vicinage was carefully safeguarded in Colonial days when for good cause shown a charge of felony was brought by certiorari or Crown information to the Supreme Court which sat only in New York or Albany. Indeed that right was regarded as so vital that it was guaranteed by the Constitutions of many and perhaps a majority of the original thirteen States of the Union. Section 355= is a legislative affirmation that the Supreme Court may not deny to an accused the right to a trial of an indictment by a jury of the'county where the indictment was found, — a right which was generally accorded to an accused both in England and in America under common-law practice, though both in England and in New York high courts and judges of distinction had asserted that they had power, in extraordinary cases, to direct that the trial be held in a county other than that in which the indictment was found even when the defendant did not apply for such a directive. If the courts did possess such power it was certainly not a power which was “ well understood ” or generally exercised.

The power of the Court of King’s Bench to remove to itself, by writ of certiorari, indictments and other criminal proceedings from inferior courts was established beyond challenge early in its history, but even though the Court of King’s Bench sat at Westminster it was not bound to try indictments there. Removal of an indictment to the Court of King’s Bench from an inferior court of limited territorial jurisdiction did not necessarily deprive a defendant of any right he would otherwise have had to be tried by a jury of the vicinage. “ The court of king’s bench * * * was divided in the crown side, and a plea side. And on the crown side, or crown office, it takes cognizance of all criminal causes, from high treason down to the most trivial misdemeanor or breach of the peace. Into "this court also indictments from all inferior courts may be removed by writ of certiorari, and tried either at the bar, or at nisi prius, by a jury of the county out of which the indictment is brought.” (4 Blackstone Comm. 265.) (Italics throughout this opinion are ours.)

The practice has been described by Holdsworth in his monumental work: “ Indictments and other proceedings from inferior courts may be removed into the court of King’s Bench by writ of certiorari. This will be done when’ a fair trial cannot be had before such inferior court, or where some difficult question of law is likely to arise. In the fifteenth and sixteenth centuries the number of criminal cases of all kinds so transferred was considerable. Such trials when held in term time are called trials at bar, i.e., they are held at the bar of the court before the judges of the court sitting in banc. But the court has power, instead of trying these cases itself, to send them for trial into the counties where the crimes were committed, or to order them to be heard by the itinerant justices sitting at nisi prius. * * * ” (1 History of English Law, 213). (See, also, 2 Hale on Pleas of the Crown, 210; 1 Chitty on Criminal Law, 157 [1826 ed.]; 3 Coke’s Inst., 3d Part 27 [1680 ed.]; 1 Stephen on History of the Criminal Law, 95, 196.)

That practice, with some statutory regulation, has in England been continued down to modern times. ‘‘ When an indictment or inquisition has been removed by certiorari into the High Court (Queen’s Bench Division) it may either

(a.) be tried before the High Court by a jury of the county from which it was removed, or
“(b.) be sent by the said Court to be tried as a nisi prius record in the county from which it was removed, or
(c.) be sent by the said Court to be tried at the Central Criminal Court.” (Stephen on Law of Criminal Procedure [1883], art. 93.)

This distinction between the effect of removal of a cause by certiorari from an inferior court to the Court of King’s Bench at Westminster and the effect of a rule or order of the King’s Bench that the cause shall be tried before a jury drawn from a county or vicinage other than that in which the crime was committed, and out of which an indictment has been drawn is not always observed by judges in their dicta in judicial opinions or by commentators. It must be kept constantly in mind in considering the authorities cited in the excellent briefs submitted to us by both sides. The power to remove for trial in Westminster was frequently exercised. Indeed, it has been said that records of the period from 1477 to 1547 make it appear “ that the Court was largely occupied at that time by trying all sorts of criminal cases arising in every part of the country.” (1 Stephen on History of the Criminal Law in England, 96.) It is significant that nevertheless the diligent research of counsel has failed to disclose, during that period, any record of a rule or direction, made in a felony case where a defendant was entitled to a trial by jury, that the defendant be tried by the court sitting en banc, without a jury drawn from the vicinage or county where the crime was committed, nor has a record been found where such a rule or direction was sought. As late as Coke’s time it appears that trial of an accused at Westminster outside of the county where the alleged crime was committed was “ warranted by the course of the common law ” only if the jury was drawn from the county where the crime was committed (3 Coke’s Inst., 3d Part, 27, 34, 80 [1680 ed.]). Though it is said that “ an instance in which accused persons were to be tried at the Gaol Delivery of Newgate, because they were too powerful in their own district, appears on the Gaol Delivery Roll, 25 Edward III., Huntingdon, where there is a writ to that effect, directed to the Sheriff of Cambridge ” (1 Pike on History of Crime in England, References and Notes, p. 479), no reported case between the 14th and 18th centuries, and no reference to such a case in any of the well known commentaries on the law of England, has been found where it was asserted that the Court of King’s Bench could direct that a felony charge might be tried by a jury of a different county because no impartial jury could be drawn in the county where the crime was committed. Though we may assume that charges of misdemeanor might be tried “ at bar ” by the Court of King’s Bench at Westminster in cases where an accused was not entitled to a trial by jury and where an impartial trial could not be had before an inferior court sitting without a jury in the town or county where the alleged crime was committed, yet at least until Rex versus Harris et al., (3 Burr. 1330 [1762], also reported in 1 W. Blackstone’s Reports, 378, 379) there was grave doubt whether a court had power to order the trial of a felony charge or even an information charging a misdemeanor before a jury drawn from another county.

That case is frequently cited as authority for the proposition that at common law, by an entry of “ a suggestion on the roll with a nient dedire ” that a fair trial could not be had in the county where the alleged felony occurred, the Court of King’s Bench could direct the trial to be held in another county. In 1754 the Court of King’s Bench, in Rex v. Burton (also known as the Nottingham case), had denied a motion for a change of venue of an information made by the Crown on the ground that all the burgesses of Nottingham were interested in the litigation and that there was not a sufficient number of other freeholders available to form a trial jury. In Rex versus Harris et al., decided by the same court eight years later, an application was made, not for a change of venue of an information but for the entry of “ a suggestion on the roll with a nient dedire ”. The court denied the application and apparently recognized that, as decided in Rex v. Burton, it had no power to grant an application for a change of venue even of an information, but Lord Mansfield said of that case: The Motions are very different, to change the Venue, which is saying, that the Cause of Action or Indictment arose elsewhere; and, as in the present Case, to continue the same Venue, and by a Suggestion on the Boll, to have a Trial in another County. For though a fair Trial can’t be had in the proper County, yet the Venue still remains, to direct the Court in their Choice of a neighbouring County ” (as reported in 1 W. Blackstone’s Reports, 378, 379). He also said that “ notwithstanding the locality of some sorts of actions, or of informations for misdemeanors, if the matter can not be tried at all, or can not be fairly and impartially tried in the proper county, it shall be tried in the next adjoining county ” (as reported in 3 Burr. 1330, 1333). In no case decided before the end of the 18th century that has been called to our attention or that we have found did the Court of King’s Bench grant a change in the county from which a jury shall be drawn for the trial of a charge of felony.

Indications that the courts of England did, nevertheless, have such authority at common law during the period when New York was an English colony, may be found not only in dicta of distinguished judges in England during that period but also in later decisions or opinions of English and Irish courts. In King v. Nottingham (4 East 208), (1803) the Court of King’s Bench was called upon to construe an act which made provision for removing criminal actions or proceedings from a limited jurisdiction to the “ county at large ” not only where the case had been brought by certiorari from an inferior court to the King’s Bench but also where the removal was made by a court of oyer and terminer. The question presented was whether a requirement in the act that the party at whose instance the removal to the county at large ” was made should post a bond applied to a case which had first been removed to the Court of King’s Bench by certiorari, Lord Ellenbobough said that a construction that the requirement did apply to such cases “ would abridge the power that this court had before the Act of directing an indictment to be tried in the next adjoining county in cases where justice required it.” Again in The King against Holden (5 B. & Ad. 348), the court in a case previously removed to it by certiorari, rejected an application by a defendant indicted for a capital felony that a suggestion be entered directing a trial in another county, but Denman, C. J., said: “ I apprehend that the power of changing the place of trial whenever it is necessary for the purpose of securing, as far as possible, a fair investigation, is a part of the jurisdiction of this Court; and that that power may be exercised, where it is absolutely necessary, in cases of felony. Instances have occurred in which this has been done for the purpose of removing the trial from limited jurisdictions; but there does not appear to be any in which it has been done with respect to a county at large: and I should think such a proceeding could not be necessary where the removal must be from one great county to another * * * still, if I thought it necessary for the purpose of securing a fair trial, I should certainly be disposed to grant this application.” (See, also, The Queen v. Conway, 7 Ir. C. L. 507 [1858] and The Queen v. Phelan, 14 Cox C. C. 579, Irish Q. B. Div. 1881.)

We repeat that during the entire period when New York was a colony of the English crown no case has been found where the Court of King’s Bench granted an application for the trial of a charge of a felony before a jury drawn from a county other than the county where the alleged felony was committed, though in some cases judges of such distinction that their considered dicta are at times accepted as authoritative pronouncements of the law, have asserted that the power to grant such an application existed at common law and would be exercised in exceptional circumstances where otherwise an impartial trial could not be had. Text writers, too, have at times ignored the distinction between the trial of an information at a place outside of the county where the crime was committed and the trial of an indictment for a felony before a jury drawn from a different county. Even though at common law the Court of King’s Bench may have had the power, in exceptional cases, to direct that an indictment for a felony be tried before a jury drawn from a county other than that in which the indictment was found, it still remains the fact that such a trial would not ordinarily be “ warranted by the course of the common law ” and would deprive a defendant accused of a felony of his generally recognized right to a trial by jury of the vicinage.

That right to a trial by jury of the vicinage was claimed by the colonists in New York and in the other American colonies as one of the fundamental rights of free men. In New York there was no discussion whether the Supreme Court which exercised in the colony the powers exercised by the Court of King’s Bench in England might even in exceptional cases.direct the trial of an indictment for felony before a jury not drawn from the county where the indictment was found. ‘ ‘ The Charter of .Liberties ” enacted by Dongan’s first assembly in 1683 and approved by the Duke of York, but forthwith disallowed upon his accession to the throne, provided that all Tryalls shall be by the verdict of twelve men, and as neer as may be peers or Equalls And of the neighbourhood and in the County Shire or Division where the fact shall arise or grow.” (1 Colonial Laws N. Y. 111.) The Act of 1691, repealed by the Crown six years later, provided that all “ tryalls shall be by the verdict of Twelve men * * * of the neighbourhood of the place where the fact shall arise or grow ”. (1 Colonial Laws N. Y. 246.) The Judicature Acts of 1691 and 1692 (1 Colonial Laws N. Y. 226, 303) also contained provisions that no man’s rights or properties should be determined (except as facts were admitted or there had been default) unless the facts be found by the verdict of twelve men of the neighborhood. The same safeguard was also contained in Bellomont’s judiciary ordinance.” (Goebel & Naughton, Law Enforcement in Colonial New York, p. 603.)

The “ Bellomont Ordinance ” of 1699 defined and regulated the jurisdiction of the courts of New York during the remainder of the colonial period. It provides in part: “ And it is further ordained •* * * That no persons right or property shall be by any of the'aforesaid courts determined, except where matters of fact are either acknowledged by the parties, of judgment confessed, or passeth by the defendant’s fault, for want or plea or answer, unless the fact be found by the verdict of twelve men of the neighbourhood, as it ought to be done by the law.” (See Revised Laws of 1813, Van Ness & Woodworth, Vol. 2, Appendix XI.) Under that ordinance “ certiorari was employed to bring up indictments already found in cases in which superintendence by the central authorities was believed to be necessary. Great care was taken that all such cases be tried by jury, and by a jury of the vicinage at that, and therefore, cases transferred from the counties by certiorari or by Crown information were tried by juries of the vicinage either at bar or at nisi prius.” (Goebel & Naughton, op. cit. p. 77.)

It is true that the authors in the same work (pp. 144, 145, 170) point out that in a few cases where it appeared that an impartial jury could not be drawn from the county where the cause of action arose or where an alleged misdemeanor was committed, an application for a change of venue was entertained or a direction given by the court that the trial should be by the Supreme Court “ at bar ” in another county, but it is significant that no ease has been found where an indictment for a felony was tried in the Colony of New York except by a jury drawn from the county where the indictment was returned.

The assertion by the English crown that a colonist charged with a felony might be tried at bar ” by the Court of King’s Bench at Westminster rather than by a jury of the vicinage was indeed one of the potent causes of the American revolution, and the original Constitutions of Maryland, Massachusetts, New Hampshire, Virginia, Pennsylvania and Georgia contained provisions expressly safeguarding trial by a jury of the county, or more often the vicinage. The Constitutions of other States contained provisions similar to that in the. Constitution of New York, that trial by jury in all cases in which it hath been used in the Colony of New York shall be established and remain inviolable forever.” Of such constitutional guaranties Judge Cooley said: Now that in jury trial it is implied that the trial shall be by a jury of the vicinage is familiar law. Blackstonc says the jurors must be ‘ of the visne or neighbourhood; which is interpreted to be of the county where the fact is committed. ’ 4 Com. 350. This is an old rule of the common law; s * * It is true that Parliament as the supreme power of the realm made some exceptions, which are enumerated by Mr. Chitty in his treatise on Criminal Law, vol. 1 p. 179, * * * But it is well known that the existence of such statutes with the threat to enforce them was one of the grievances which led to the separation of the American colonies from the British empire.” (Swart v. Kimball, 43 Mich. 443, 445, 448. See, also, Black on Constitutional Law [3d ed.], p. 684.)

It is true that Judge Cooley also said that perhaps the guarantee of a trial by jury might not exclude “ a change of venue in the application of the state to escape local passion, prejudice or interest,” though, as he said, there was authority to the contrary, and in Mack v. People of the State of New York (82 N. Y. 235, 238), the court said of this provision of our Constitution that: By all rules of interpretation, then, we are to read the language of the bill of rights in the light of the law as it was when the bill of rights was adopted. Then, though as a rule indictments could be preferred and tried only in the county where the offense was committed, there were exceptions to that rule of instances in which the legislature had directed otherwise.” (Italics are new.) It is noteworthy that in this State no case can be found where a court directed the trial of an indictment for a felony by a jury drawn from a county other than that in which the indictment was found until after 1828 when the Legislature adopted a statute providing in part that all issues of fact joined upon any indictment, shall be tried by a jury, in the county where such indictment was found, unless for special causes the Supreme Court shall order an indictment removed into that court to be tried in some other county ” (2 Rev. Stat. of N. Y., part IV, ch. II, tit. V, § 1. See, also, L. 1829, ch. 65).

The Court of Appeals has said that “ the right to remove the place of trial from one county to another, where a fair and impartial trial cannot be had in the county where the indictment is pending, has long existed. It existed at common law, and was subsequently incorporated into the statutes of the State.. The provisions of the Code of Criminal Procedure upon the subject have been evolved from previous legislation and, so far as they extend, now contain the rule of law governing such an application ” (People v. McLaughlin, 150 N. Y. 365, 375). The court was there considering the judicial duty as well as power to remove the place of trial from one county to another upon the application of the defendant under the provisions of section 344 of the Code of Criminal Procedure which even then extended only to removal upon the application of the defendant, though the earlier statutes did not in terms specify upon whose application the removal might be made. What the court there said, has no reference to the effect of section 355 of the Code of Criminal Procedure or to applications of the prosecution for the removal of the trial of an indictment from one county to another.

While the earlier statutes, from which section 344 of the Code of Criminal Procedure had been evolved were still in effect, the Supreme Court of the State had, however, held that at common law the People had the right to move, upon good cause shown, for the removal of the trial of an indictment to another county and that the statute had not taken away this pre-existing right of the People. That was true, the court said, though some provisions of section 1 of the 1829 statute ‘ ‘ may raise a slight inference that the Legislature by which it was passed supposed that the certiorari could be issued only at the instance of the defendant. But that could not have the effect to abrogate a pre-existing right of the people ”. The court added that “ it is safe to conclude that the well settled rights of the public have not been taken away by a remote inference ” (The People a. Baker, 3 Abb. Prac. 42 [1856], The People v. Webb, 1 Hill 179).

These cases have been generally accepted as establishing the rule in this State that even without statutory authority the Supreme Court has inherent power to remove the trial of a case from one county to another upon the application of the prosecution when no statute directs otherwise. Doubtless at the time the Legislature adopted sections 344 and 355 of the Code of Criminal Procedure it knew that the Supreme Court claimed that power. Nonetheless, the Legislature must also have known that the. power of removal had rarely been exercised at the instance of the prosecution, for, even where judges asserted that the power existed, they recognized that the right of an accused to a trial of an indictment before a jury drawn from the county where the indictment was found was not to be lightly disregarded and that only the most compelling reason could justify trial by a jury not drawn from the vicinage. The Legislature must have known too that the Constitutions of many States guaranteed the right of an accused to the trial of an indictment by a jury where the alleged crime occurred and provided that even the Legislature might not authorize a change of venue from that county and that in this State men who had studied the question were of the opinion that no such change should be permitted.

It is against that background that the scope and effect of section 355 of the Code of Criminal Procedure must be judged. The statute does not leave to “ remote inference ” a legislative intention that the trial of an indictment must be before a jury of the county in which the indictment was found unless removed to another county at the instance of the defendant. The statute is an express mandate that a trial must "be so had unless removed as provided in the second subdivision of section three hundred and forty-four [of the Code of Criminal Procedure] ”; and as this court pointed out in People v. Farini (239 N. Y. 411, supra), an action can be removed as provided by section 3M only on the application of a defendant. Construction .of the statute according to its letter as contended by the appellant conforms to the general practice since the adoption of the code and the common understanding that the statute has the effect of taking away such rights as the People may have had to apply for the removal of the trial of an indictment to another county. Since the statute was enacted no instance has been found where the People applied for such removal. In 1943 a bill was introduced to amend section 344 by adding the words or the district attorney ” after the words on the application of the defendant.” Though the failure to adopt the proposed amendment would not justify an inference that the Legislature disapproved the suggestion that the District Attorney as well as the defendant should have the right to move for a change in the place of a trial, it is, we think, significant that the Committee on Criminal Courts Law and Procedure of the Association of the Bar of the City of New York opposed the bill on the merits without any suggestion that under the law as it then stood the prosecution already had that right.

The question remains whether the Legislature could without violation of the Constitution prohibit the trial of an indictment in a county other than the county in which the indictment was found unless the action is removed upon the application of the defendant. We do not doubt that the statute does not violate any provision of the Constitution of the State even if, until that time, the Supreme Court could have directed the removal of an indictment to another county upon the application of the People. Since, as we said in Mack v. People of the State of New York (82 N. Y. 235, 237, supra), an accused has the “ right to a trial in the county of his abode, of his friendships, of his means of defense ”, except in instances where “ the legislature had directed otherwise ”, the Legislature, for the better protection of the right of the accused, may withdraw its previous sanction of judicial directions made, for good cause shown, on the application of the People and against the opposition of the accused, that the trial of an indictment be held in a different county. Such withdrawal of the legislative sanction leaves untouched the general jurisdiction of the Supreme Court in criminal cases. The statute merely regulates the manner in which the trial shall be had by safeguarding the ancient common-law right of the accused to a trial by a jury of the vicinage. The right of the Legislature to do that is preserved by the Constitution even though the Legislature may not deprive the Supreme Court of any part of its general jurisdiction.

The Legislature can if it chooses confer upon the People the right in proper case to apply for an order directing that an indictment be tried before a jury drawn from a county other than the county where the indictment was found. Instead it chose to provide in express language that such direction may be given only upon the application of the accused. Even if there were room for construction of the language of the statute the argument that it is essential for the administration of justice that the State should have the right to ask for a change of venue upon proof that otherwise an impartial jury cannot be impaneled loses its force when it appears that many other States have withheld that right from the People; that the Commissioners on Practice and Pleading, including David Dudley Field, appointed pursuant to the provisions of the Constitution of 1846 in this State, reported in 1850 a proposed code of criminal procedure which expressly confined to the defendant the right to apply for a change of venue; that no change in the place of trial of an indictment was made in this State on the application of the prosecution.in almost one hundred years; and that as late as 1943 a group of distinguished lawyers after study of the subject reported to the Legislature that “ the prosecuting agencies are provided with ample machinery to obtain a fair and impartial trial in the county in which an indictment is found.” It is the function of the Legislature to determine whether or not that conclusion is sound. The courts must vindicate the right of an accused to a trial by a jury of that county unless the Legislature provides otherwise.

The order should be reversed and the petition granted.

Loughran, Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Order reversed, etc.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    Andre Luotto, Appellant, v. Marshall Field, Doing Business under the Name of Field Publications, et al., Respondents.
    Argued April 2, 1945;
    decided July 19, 1945.

      Arnold J. Brock, William P. Balaban and Bernard Noskin for appellant.
    I. The effect of the judgment entered upon the .order of the Appellant Division was that the causes of action with respect to general damages were held insufficient and the same causes of action with respect to special damages alleged in paragraph 9 to 11, inclusive, were held sufficient. Such a result is inconsistent and inherently impossible. (Manko v. City of Buffalo, 294 N. Y. 109.) II. The Appellate Division did not follow the principle that special damages are superadded. to general damages and flow from the same cause of action and as a result entered an order that in effect held the complaint legally insufficient and at the same time legally sufficient. So, from the very nature of these causes of action the Appellate Division had no power to make the order upon which the judgment appealed from, was entered. (Lowe v. Lowe, 265 N. Y. 197.)

      Francis H. Horan, Henry Cassorte Smith, Charles Carroll Kieffer and Carolinda Waters for respondents.
    I. A part or parts of a cause of action may be stricken under section 476 of the Civil Practice Act. (Lowe v. Lowe, 265 N. Y. 197; Pollack v. Warner Bros. Pictures, Inc., 266 App. Div. 118; Melniker v. American Title & Guaranty Company, 253 App. Div. 570; Sheehan v. Cone General Advertising Agency, Inc., 176 Misc. 882; Tobias v. Celler, 180 Misc. 421, 267 App. Div. 839.) II.
      Manko v. City of Buffalo (294 N. Y. 109) is not controlling in respect of this case. The complaint in that case divided a single cause of action into two by pleading two items of damage as separate causes. If a motion for judgment on the pleadings in such an action must be addressed to all the items of damage where the statute gives only a single cause of action for damages, it does not follow that the claim of general damages in a libel suit, as distinguished from separate special damage claims, cannot be stricken on a motion for judgment on the pleadings. III. Defendants’ motion for judgment on the pleadings sought dismissal of both the alleged causes of action asserted in the complaint with the exception only of the claims asserted in the five paragraphs which contained the plaintiff’s definite claims of various items of special damages. The rationale of the motion was that the two alleged causes of action, apart from the claims in paragraphs 8 to 12,' inclusive, which asserted claims of special damages, were legally insufficient because the article complained of was not libelous per se. (Reporters’ Assn. v. Sun Printing & Pub. Assn., 186 N. Y. 437; Crashley v. Press Publishing Co., 179 N. Y. 27; Seelman, The Law of Libel and Slander in the State of New York, p. 384; Newell, Slander and Libel [4th ed.], p. 841, § 753; Schweikert v. New York Evening Journal, 132 Misc. 169.)
   Desmond, J.

This is a libel action, the substance of plaintiff’s grievance being that in an article and an editorial published in defendant’s newspaper, on July 14,1942, plaintiff, as he claims', was accused of having been disloyal to the Government of the "United States and its war effort. In the complaint are set forth two alleged causes of action but each such cause of action is based on the same two July 14, 1942, publications. In each cause of action there are pleaded four separate items of alleged special damage, also general damages, those statements of damage, special and general, being the same in each count. At Special Term defendant moved under section 476 of the Civil Practice Act, to dismiss on the pleadings both causes of action excepting those paragraphs which aver special damage, defendant’s claim in this connection being that the article and editorial were not libelous per se. As another branch of that motion, defendant, under rules 113 and 114 of the Civil Practice Act, prayed for partial summary judgment dismissing, as to each cause of action, those paragraphs thereof which put forth the four claims of special damage, defendant urging that as to those items of damage there were, in the light of documentary proof presented by defendant on the motion, no triable issues of fact. If the motion had been granted as to both its parts, the result would have been a dismissal of the entire action. Special Term denied the motion in all respects.

The Appellate Division held that the publications were not libelous per se and that, accordingly, the complaint was insufficient to sustain any recovery of general damages. As to the claimed special damages, the Appellate Division was of the opinion that as to one item thereof, set forth in the paragraph of the complaint numbered “ 8 ” there was no triable issue of fact, so that the particular item could not properly remain in the complaint. The Appellate Division’s order modified the Special Term order by inserting therein provisions “ granting the motion to the extent of granting judgment on the pleadings dismissing the two causes of action insofar as they concern general damages ”, also “ granting partial summary judgment dismissing the claimed special damages under paragraph ‘ 8 ’ ”. Judgment was entered accordingly and plaintiff appealed to this court.

In Manko v. City of Buffalo (294 N. Y. 109), we held that an honorably discharged veteran, seeking as damages for the denial by the city of his civil service preference, and attempting in his complaint to set up his lost salary as one cause of action and his legal expenses as another, had in fact a single cause of action only, despite the manner of pleading it. In that case we held that the Appellate Division had erred in granting a judgment which dismissed the second cause of action only. “ By dividing the damage ”, we said, one cannot divide a single cause of action.” (p. 111). Essentially, the Appellate Division in the present case has done what it did in the Manko case. The judgment entered on the Appellate Division’s order in the present case is a final judgment dismissing for all purposes certain alleged items of damage set forth in the complaint, leaving standing other items of damage in the same complaint. Such a final judgment is, as we held in the Manko case, unauthorized. Inappropriate and insufficient allegations of damage in a complaint may be stricken out on order, but on such an order there cannot be entered a judgment which has the effect of severing those allegations into a separate cause of action, when such allegations really constitute only part of the statement of damage in a single cause of action for. a single wrong. Neither section 476 of the Civil Practice Act, nor rule 114 as to ordering judgment as to part of a cause of action or summary judgment as to one of several causes of action, permits the entry of a separate judgment as to such separate items of damage only (see discussion in Lowe v. Lowe, 265 N. Y. 197, 202, 203).

Since the paper entered on the Appellate Division order is in terms and in effect a judgment, we have jurisdiction to review it, and, accordingly, we do not dismiss the appeal but reverse it. In so doing we express no opinion as to the merits of the questions argued.

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

Lehman, Ch. J., Loughran, Lewis, Conway, Thacher and Dye, JJ., concur.

Ordered accordingly.


author: Loughran, J.

text:
    In the Matter of the Claim of Hazel Baum et al., Claimants, against Herbert E. Welden, Respondent. State Industrial Board, Appellant.
    Argued May 17, 1945;
    decided July 19, 1945.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Orrin G. Judd of counsel), for appellant.
    I. The Workmen’s Compensation Law does not exempt a farmer from the application thereof. It merely excludes ‘1 farm laborers ’ ’ from the definition of an employee (Workmen’s Compensation Law, § 2, subd. 4). II. The evidence amply supported the finding of the Industrial Board that the employer was engaged in the hay business for pecuniary gain and that the decedent was employed in a hazardous employment in connection therewith within the scope of the Workmen’s Compensation Law. The Appellate Division passed upon a question of fact by holding that the employer was a farmer and that' the decedent was engaged in the performance of labor incidental to the operation of the employer’s farm. (Matter of Griffin v. Cruikshank Co., 253 N. Y. 303; Matter of Comm. of Tax. & Fin. v. Phillips, 283 N. Y. 673; Matter of Dispenza v. Hancock Life Ins. Co., 238 App. Div. 885; Matter of Miles v. Colegrove, 284 N. Y. 609; Matter of Butterfield v. Brown, 287 N. Y. 623; Posey v. Moynehan, 195 App. Div. 440; Matter of Clarke v. Roger I. Sherman, Inc., 184 App. Div. 921; Lewkowitz v. Cohen, 210 App. Div. 803; O’Dell v. Bowman, 189 App. Div. 386; Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459; Matter of Vroman v. Van Alstyne, 293 N. Y. 837.)

      Merton D. Meeker for respondent.
    I. The employer, was, on July 5, 1940, a farmer by occupation and deceased, at the time of the accident which caused his death, was engaged in work incidental to the operation of his employer’s farm and not within the provisions of the Workmen’s Compensation Law. (Matter of La Duke v. Martin, 287 N. Y. 546; Matter of Davis, 287 N. Y. 778; Matter of Cross v. Whittley, 261 N. Y. 546; Matter of McAllister v. Cobb, 237 App. Div. 674; Mullen v. Little, 186 App. Div. 169; Coleman v. Bartholomew, 175 App. Div. 122; Matter of Schmidt v. Berger, 221 N. Y. 26; Matter of Bargey v. Massaro Macaroni Co., 218 N. Y. 410; Geller v.
      Republic Novelty Works, 180 App. Div. 762.) II. The business of dealing in hay is not a hazardous employment within the Workmen’s Compensation Law and the employer never engaged four or more workmen, and did not have in his employ four or more workmen on the date of the accident. (Maloney v. Levy & Gilliland Co., 176 App. Div. 470; Casterline v. Gillen, 182 App. Div. 105.)
   Loughran, J.

The Appellate Division has annulled an award made under the Workmen’s Compensation Law to the widow and mother of Charles Baum who met his death in an accident that arose out of and in the course of his employment. The court said that at the time of the accident Baum was working as a farm laborer. In that view of the case, the claim was not within the reach of the statute, because the word “ Employee ” — as used therein — does not include farm laborers (§2, subd. 4). The State Industrial Board brought the case here.

The employer owned a farm near the Village of Richfield Springs. He did not make his home on that property. In respect of his use thereof, he gave this testimony: “ Q. Now you told the court here you were a farmer. You are also engaged in the hay and grain business ? A. No, I sell the hay but no grain. Q. You sell hay? A. Yes. We have a big farm and raise hay and sell it. Q. You say you conduct your business from your farm? A. I conduct the hay business from my farni. Q. But you buy hay and sell it, buy from other persons besides what you raised on your farm? A. Yes. Q. Did you use trucks for that? A. Yes.” The employer also baled the hay of other farmers for a price — an activity in which he made use of a piece of apparatus that was driven by a gas motor.

Baum had lived in Richfield Springs and had worked there as a carpenter. Nothing in this record suggests that he had ever been employed on any farm. The occasion on which he lost his life was the first time he had worked for the employer. He was then assisting in the work of removing some metal sheeting from the roof of an obsolete building in the city of Hudson. The employer intended to put the sheeting on buildings on his farm. It does not appear that Baum had been hired to do any part of that job.

The decision of the Board was to this effect: At the time of the accident, Baum was employed as a carpenter; the employer was then engaged in the business of dealing in hay and operating a hay baling machine for pecuniary gain; the employment of Baum was incidental to that hay business and was not incidental to any farm operation. These findings, we think, were at least fairly warranted by the evidence. Section 20 of the statute says: “ The decision of the board shall be final as to all questions of fact ”. We are obliged, therefore, to restore to the claimants the benefits that were awarded to them by the Board. (Matter of Uhl v. Eartwood Club, 221 N. Y. 588; Matter of Griffin v. Cruikshank Co., 253 N. Y. 303; Matter of Hamilla v. Gade, 278 N. Y. 502; Matter of Butterfield v. Brown, 287 N. Y. 623.)

The order of the Appellate Division should be reversed and the award of the State Industrial Board affirmed, with costs in this court and in the Appellate Division.

Lehman, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Ordered accordingly.


author: Conway, J.

text:
    York-Buffalo Motor Express, Inc., Appellant, v. National Fire & Marine Insurance Company, Defendant, and Rhode Island Insurance Company, Respondent.
    Argued April 3, 1945;
    decided July 19, 1945.

      Norman Winer for appellant.
    “ Other insurance ” clauses are, of course, limitations upon liability, since the policy is for a certain face amount and the clause cuts down or limits that amount. A provision that there should be no “ limitation ” read into the policy is a provision that there be no such clause. (2 Williston on Contracts [Rev. ed.], pp. 992-994, 1000; Debtor and Creditor Law, § 231 et seq.; 4 Joyce on Insrance [3 ed.], p. 4166; Lucas v. Jefferson Insurance Co., 6 Cow. 635; Morrell v. Irving Fire Insurance Co., 33 N. Y. 429.)

      Fred Flatow for respondent.
    The assumption that the indorsement, for some unexplained reason, is a separate and distinct policy is wholly unwarranted.
   Conway, J.

The plaintiff is a common carrier by motor vehicle, engaged in interstate commerce. It insured for the benefit of shippers and/or consignees in Rhode Island Insurance Company, hereinafter referred to as Rhode Island. That policy contained, among others, the following clause:

Other Insurance
“ 9. This insurance is warranted by the Assured to be excess insurance so far as concerns any loss or damage to the extent of any other insurance by whomsoever effected, directly or indirectly covering upon the same property whether concurrent, prior, or subsequent hereto in date.”

There was, however, an indorsement upon that policy, as required by the rules and regulations of the Interstate Commerce Commission. (U. S. Code, tit. 49, § 315.) It was known as Form BMC-32. By that indorsement, insurance was provided for loss or damage to property belonging to a shipper or consignee. It provided that Rhode Island should not be liable “ for an amount in excess of $2,000, in respect of any loss of or damage to or aggregate of losses or damages of or to the property * * * occurring at any one time and place, nor in any event for an amount in excess of $1,000, in respect of the loss of or damage to such property carried on any one motor vehicle, * * *.” It was, in effect, statutory all-risk coverage for a shipper or consignee. The indorsement was not cancelable without cancelation also of the policy to which it was attached and then cancelation of the indorsement could be effected only by a thirty days’ notice in writing to the Interstate Commerce Commission at its office in Washington, D. C., which commenced to run only from the date thq notice was actually received at the office of the Commission. Only one indorsement was permitted at one time.

The difficulties which have arisen, resulting in this litigation, were due to the fact that in October, 1941, Rhode Island canceled its policy by giving a five days ’ notice of cancelation under the policy but failed and neglected to send any notice of cancelation of the policy and indorsement to the Interstate Commerce Commission until February of the following year. Such failure was unknown to plaintiff which, in November, 1941, obtained a binder for similar liability insurance', “ Motor Truck-Merchandise-Policy (Truckmen’s Form) ”, from the defendant, National Fire and Marine Insurance Co. (hereinafter referred to as National) in the sum of $15,000. The policy issued by National contained, among others, the following clause: 1 ‘ Other Insurance — If, at the time of loss, there is other insurance by policy, common contract or otherwise, in favor of the Assured herein named, or of the owner or other parties interested in the goods, under which a recovery could be had if this Policy were not in existence, then this Company shall only be liable to pay such part of the said loss as the total amount for which this Company shall be liable on the contents of any one truck shall bear to the total of such insurance.”

Then occurred two losses. The first was due to a fire in one of plaintiff’s trucks, resulting in damage to cargo in the total amount of $7,490.50. The second was due to a fire resulting in damage to cargo to the extent of $2,345.09.

Whpn plaintiff made its proof of loss to National, the latter refused to pay more than the amount of the losses less $2,000, in view of the continuance of the liability of Rhode Island under Form BMC-32. Thereupon, without the consent of Rhode Island, plaintiff settled with National by taking the total of its two losses less $2,000, and gave releases in which it reserved its rights against Rhode Island. When plaintiff brought suit to recover $2,000 upon the indorsement, Rhode Island counterclaimed on the theory that, by the terms of the indorsement, the plaintiff was required to reimburse it for any payment that the Company would not have been obligated to make under the provisions of the policy, except for the agreement contained in this endorsement.” We shall refer to that counterclaim later. At the conclusion of the trial, the complaint, which sought judgment against Rhode Island and National or either of them for $2,000, was dismissed as to National on the merits and National is not before this court.

Judgment was awarded plaintiff in the sum of $614.72, which is one-sixteenth of the total losses suffered, thus in effect permitting the “ Other Insurance ” clause of the Rhode Island policy to be read into the indorsement. This appeal presents for our determination the contention of plaintiff that it is entitled to the difference between the sum awarded and the $2,000 claimed, and that involves the solution of several problems.

It seems clear that by the express terms of the indorsement, •Form BMC-32, no term of the policy may be read into it, insofar as shippers and consignees are concerned. Insurance indorsements pursuant to United States Code, title 49, section 315, have been so construed. (Bolta Rubber Co., Inc., v. Lowell Truck. Corp., 304 Mass. 426, cert. den. 309 U. S. 690; Consolidated Shippers v. Pacific Employers Ins. Co. [Dist. Ct. of Apps., 2d Dist., Div. 2, Calif.], 114 Pac 2d 34.) The following is the pertinent language of the indorsement: Within the limits of liability hereinafter provided it is further understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, or any other endorse ment thereon or violation thereof, or of this endorsement by the insured, shall affect in any way the right of any shipper or consignee, or relieve the Company from liability for the payment of any claim for which the insured may be held legally liable to ■ compensate shippers or consignees, irrespective of the financial responsibility or lack thereof or insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which this endorsement is attached are to remain in full force and effect as binding between the insured and the Company. The insured agrees to reimburse the Company for any payment made by the Company on account of any loss or damage involving a breach of the terms of the policy and for any payment that the Company would not have been obligated to make under the provisions of the policy, except for the agreement contained in this endorsement.” (Emphasis supplied.)

In the Bolta case (supra), the action was brought by a shipper against the carrier and the carrier’s insurer for the loss of the shipper’s goods through theft. The insurer defended upon the ground that the carrier had breached a condition in the policy (since the Babaco Alarm System on the truck was not set in the “ on ” position), but the court overruled that contention, pointing out that the conduct of the carrier did not impair the right of the plaintiff to enforce for its own benefit the obligation of the defendant insurer to the extent of $1,000 and no more, under the indorsement' added to the policy in obedience to the rules and regulations of the Interstate Commerce Commission made under the authority of the Motor Carrier Act of 1935 (Act of August 9, 1935, ch. 498, 49 U. S. Sts. at Large, 543, U. S. C. Sup. IV, Title 49, secs. 301-327).”

Plaintiff here is “ suing on behalf of and for the benefit of the • shippers and/or consignees to whom it is legally liable ” and has listed them and their losses in its complaint. One of the provisions of Form BMC-32 is: “In consideration of the premium stated in the policy to which this endorsement is attached, the Company hereby agrees to pay, within the limits of liability hereinafter provided, any shipper or consignee for all loss of or damage to all property belonging to such shipper or consignee, and coming into the possession of the insured in connection with its transportation service, for which loss or damage the insured may be held legally liable, * * (Emphasis supplied.) Thus the plaintiff is suing as trustee of an express trust for the benefit of the shippers or consignees. (Civ. Prac. Act, § 210; Wilson & Co., Inc., v. Hartford Fire Insurance Co., 190 App. Div. 506, affd. 229 N. Y. 612; Lewis v. Home Insurance Co., 199 App. Div. 556, affd. 234 N. Y. 498; Symmers v. Carroll, 207 N. Y. 632; Duncan v. C. M. Ins. Co., 129 N. Y. 237.) The counterclaim of Rhode Island, to which we referred (supra), is unavailing. If plaintiff were suing upon its own behalf rather than as trustee of an express trust, a counterclaim for “ any payment that the Company would not have been obligated to make under the provisions of the policy, except for the agreement contained in this endorsement ” might well be a good one. It may not be made against plaintiff in its capacity as trustee. (City Bank Farmers Trust Co. as trustee v. Silverberg, 280 N. Y. 424.)

Since plaintiff is seeking to recover as trustee and since the “ Other Insurance ” clause may not be read into the indorsement, it is clear that plaintiff may hold Rhode Island for the losses up to $2,000. (Joyce on the Law of Insurance [2d ed., 1918], p. 4166; Lucas v. Jefferson Ins. Co., 6 Cow. 635, 637; Morrell v. Irving Fire Insurance Co., 33 N. Y. 429, 430.)

In Joyce on the Law of Insurance (supra), it is stated: “ Most policies of fire insurance contain a clause providing that the insurer shall not be liable for any greater proportion of any loss which may occur than the amount named in the' policy shall bear to the entire amount of insurance upon the property * * *. If there are several such policies and the loss does not equal the full amount of all the policies, the measure of damages against each insurer is the proportion of the loss which the amount of insurance in the policy sued upon bears to the whole insurance. By inserting this clause the insurer limits the amount of recovery upon that particular policy to the proportionate amount which that policy bears to the entire amount of the policies. In the absence of such a clause, the insured could recover the whole amount from any one of the insurers, and leave him to obtain contribution from the other insurers.” (Emphasis supplied).

In Lucas v. Jefferson Ins. Co. (supra, p. 637), it was stated: “It is well settled, that upon a double insurance, though the insured is not entitled to two satisfactions, yet in the first action, he may recover the whole sum insured, leaving the defendant to recover a rateable satisfaction from the other insurers (1 Bl Rep. 416).”

In Morrell v. Irving Fire Insurance Co. (supra, p. 455), it was said: “ In my opinion, the insured, in a case like the present, may have his action against both insurers jointly, or against either separately, and recover his full damages for the breach of the building contract, and leave the two insurers to an adjustment of their rights between themselves according to well settled rules of law applicable to different insurers of the same property.”

The judgments should be reversed and judgment directed in favor of the plaintiff in the sum of $2,000, with interest, and costs in all courts.

Lehman, Ch. J., Loughran, Lewis, Desmond, Thacher and Dye, JJ., concur.

Judgment accordingly.


author: Lehman, Ch. J. Thacher, J.

text:
    Cornelia O. Skinner et al., Appellants, v. Paramount Pictures, Inc., Respondent.
    Argued May 16, 1945;
    decided July 19, 1945.

      Arthur F. Driscoll, Milton M. Rosenbloom and Howard Alan Guttenberg for appellants.
    I. An appellate court has no jurisdiction to hear an appeal unless such jurisdiction is conferred by the Constitution or the statutes. (People ex rel. Curtis v. Kidney, 225 N. Y. 299.) II. The decision of the court at Special Term was not a dismissal of the complaint on the merits. (Walker Memorial Baptist Church v. Saunders, 285 N. Y. 462.)

      Louis Nizer and Walter S. Beck for respondent.
   Lehman, Ch. J.

The plaintiffs are the authors of a story entitled “ Our Hearts Were Young and Gay.” After the story had been copyrighted and published in book form they entered into a contract with the defendant whereby they s®ld and assigned to the defendant “ the sole and exclusive motion picture rights, throughout the world, in and to and in connection with said story; together with the sole and exclusive rights: to use, adapt, translate, subtract from, add to and/or change said story and/or the title thereof and/or any similar title in the making of motion pictures, which expression as hereinafter used shall be deemed to include, but not be limited to, sequels of said motion pictures and/or continuations thereof (provided, however, that they shall be created by or for the Purchaser and shall not be based upon other incidents, episodes or parts of the lives or experiences of the Sellers not contained in said story) ”. In the same contract the plaintiffs granted to the defendant the right, subject to. specified conditions, to use their names “ in connection with any use, version or adaptation which the Purchaser may make of said story ”.

Alleging in their complaint, that the defendant is planning to exhibit “ another motion picture, not based upon the material contained in the said book or story ‘ Our Hearts Were Young and Gay ’, but wholly fictitious, and to use the names of the plaintiffs as the names of two of the characters therein,” the plaintiffs brought an action asking judgment “ that defendant be enjoined and restrained from using the names of the plaintiffs, or either of them, or the name of Otis Skinner ’ ’ and that plaintiffs recover damages for the use of their names. After the defendant had served its answer the plaintiffs moved at Special Term for an injunction pendente lite against the proposed use of the plaintiffs’ names.

The contract between the parties is annexed to the complaint. The defendant in its answer “ admits that it proposes to produce, distribute and exhibit a sequel to and/or continuation of the picture entitled ‘ Our Hearts Were Young and Gay ’ as authorized by and in accordance with the terms and provisions of said agreement between plaintiffs and the defendant, which sequel and/or continuation shall be entitled ‘ Our Hearts Were Growing Up ’,” and “ that ‘ Cornelia Otis Skinner ’ and ‘ Emily Kimbrough ’ are characters in said scenario.” The issue raised by the pleadings is whether by the terms of the contract the plaintiffs granted to the defendant the right to use their names as characters in the scenario of the proposed picture. Upon the motion for an injunction pendente lite the pleadings were supplemented by voluminous affidavits submitted by each side.

It appears without dispute that the material used in the scenario is not taken from the plaintiffs’ book or story and is not based on any actual “ incidents, episodes or parts of the lives or experiences of the Sellers not contained in said story ” but on imaginary incidents and episodes. The only dispute of fact in the affidavits relates to the intention of the parties when they made the contract and their understanding of its language. Evidence relating to such intention and understanding is relevant only if the contract is ambiguous. The justice at Special Term denied the motion- for an injunction pendente lite, pointing out provisions in the contract tending to support the defendant’s contention that the plaintiffs had granted to the defendant the right to use their names in the scenario of the proposed motion picture. The most that can be said for plaintiffs is that parol evidence may perhaps be admissible at the trial in support of a contrary construction should the view be taken that the contract is not sufficiently unambiguous. Suffice it for the purposes of this motion to hold that plaintiffs have not established that clear right to relief which is a necessary condition of granting a temporary injunction. The motion is denied. If plaintiffs desire an early trial they may submit an appropriate order, subject to the provisions of Buie 150, B. C. P.” The order of Special Term dated January 25th, denying the motion for an injunction, provided that the case might be placed at the foot of the Beady Day Trial Calendar for January 29tli if either party filed a note of issue.

The plaintiffs appealed to the Appellate Division, and the parties stipulated that ‘1 the trial of the issues herein be waived, and that the order made herein by Mr. Justice Valente and dated the 25th day of January, 1945, be considered as constituting a decision made after trial and treated as such for all purposes; and that the pending appeal from said order shall be considered and treated as an appeal from a judgment dismissing the complaint on the merits after trial ”. The Appellate Division affirmed “ the order appealed from, which by stipulation is to be deemed a judgment dismissing the complaint,” and ordered that a judgment of affirmance may be entered herein, dismissing the complaint ’ The plaintiffs have appealed by permission of the Appellate Division from the judgment entered in accordance with that order.

There has been no trial at Special Term and no request by either party for the determination of any issue of fact or law upon which a judgment determining the action might be based. There was only an application for provisional relief and a denial of that application. Even if the denial had been based upon a decision of the court at Special Term that the defendant’s threatened action is lawful, that decision would not conclude further contest of the issues both of law and fact in the action. (Bannon v. Bannon, 270 N. Y. 484.) In truth, however, the application for provisional relief was not denied on the ground that the plaintiffs have no cause of action, but upon the ground that their claim was so doubtful that even provisional relief should be withheld until they established their cause of action at a trial. With the approval of the court at Special Term the parties could, if they chose, stipulate that their controversy should be submitted to the court for final determination upon affidavits instead of testimony in open court. Subject only to limitations imposed by the law of the State, they could by stipulation agree upon the rules of substantive law and procedure that should be applied in determining the controversy by a court of competent jurisdiction. The parties entered into no such stipulation while the case was pending in the court of original jurisdiction. That court has not rendered any final judgment, has never been asked to render such judgment and has never been in a position where it could do so. No judgment dismissing the complaint follows as the result of an affirmance of the order of Special Term.

The Appellate Division is a court of review except where original jurisdiction is conferred upon it by the Constitution or statutes of the State. By express provision of the Legislature “ an action, or special proceeding ” in the Supreme Court where the parties “ agree upon a case cpntaining a statement of facts upon which the controversy depends ” in accordance with section 546 of the Civil Practice Act “ must be tried and judgment rendered by the appellate division ” (§ 548). The “ trial ” in such cases is by statute limited to questions of law arising upon the statement of the ultimate facts upon which the parties have agreed. Here there has been no submission upon an agreed statement of facts, and the Legislature has conferred upon the Appellate Division no jurisdiction to “ try ” issues either of law or of fact in this action. Indeed, even where the parties have submitted a controversy upon a statement of agreed facts the Legislature has withheld jurisdiction from the Appellate Division to enter a judgment unless the submission is adequate to draw “ conclusions of law determinative of the matter without the necessity of drawing inferences of fact.” (Title Guar. & Tr. Co. v. Mort. Comm., 271 N. Y. 302.) “ The court can draw no inference of fact even from the facts as stipulated.” (N. Y. Tel. Co. v. Siegel-Cooper Co., 202 N. Y. 502, 506.) No stipulation of the parties can confer upon the Appellate Division a power to try an action or to render judgment upon a controversy which the Legislature has withheld from the Appellate Division unless the parties submit their controversy upon a statement of agreed facts.

The question remains whether without a trial the Appellate Division has power to render final judgment upon an appeal taken from an order denying to the plaintiffs relief asked by them pending a trial. The power granted by the Legislature by section 584 of the Civil Practice Act to appellate courts to reverse or aErm wholly or in part or to modify the judgment or order appealed from and “ thereupon render judgment of aErmance, judgment of reversal and final judgment upon the right of any or all of the parties, or judgment of modification thereon,” does not confer upon the appellate court power to render a final judgment upon the rights of the parties unless such rights have been passed upon by the court from which the appeal is taken and the ruling of that court is subject to review upon the appeal. The appellate court may grant a “ motion for judgment which -the court below ought to have granted.” It cannot grant judgment where the court below has never had opportunity to rule upon the rights of the parties. Nor does section 476 of the Civil Practice Act confer upon the Appellate Division power to grant judgment in a case where, as here, the appeal is from an order which neither grants nor denies judgment to either party, and where the sufficiency of the complaint is not challenged by the defendant, and where the plaintiffs certainly do not admit that the defendant is entitled to judgment.

For these reasons the judgment of the Appellate Division should be reversed, the order of the Special Term affirmed, with costs, and the matter remitted to the Special Term for further proceedings not inconsistent with this opinion

Thacher, J.

(dissenting). In view of the stipulation of the parties, my view is that the court below had power to decide this case upon the merits and that we should review its judgment. Since this course is not to be followed, I withhold discussion of the merits upon this appeal.

Loughran, Lewis, Conway, Desmond and Dye, JJ., concur with Lehman, Ch. J.; Thacher, J., dissents in opinion.

Judgment accordingly.