author: Rippey, J. Desmond, J.

text:
    Gus Angelos et al., Copartners under the Name of The World Cafeteria, Respondents, v. William Mesevich, Individually and as President of the Cafeteria Employees Union, Local 302, et al., Appellants.

      Argued October 19, 1942;
    decided January 21, 1943.

      Louis B. Boudin and Irving B. Feinberg for appellants.
    The judgment invades appellants’ rights under the Federal and State Constitutions. (Senn v. Tile Layers Protective Union, 301 U. S. 468; Thornhill v. Alabama, 310 U. S. 88; A. F. of L. v. Swing, 312 U. S. 321; Bakery & Pastry Drivers v. Wohl, 315 U. S. 769; People v. Muller, 286 N. Y. 281.) The case presents a “ labor dispute ” within the meaning of section 876-a of the Civil Practice Act. (Kershnar v. Heller, 258 App. Div. 751; Saito v. Waiters & Waitresses Union, Local 2, 12 N. Y. S. [2d] 283; Boro Park Market v. Heller, 256 App. Div. 588; 280 N. Y. 481; Baillis v. Fuchs, 283 N. Y. 133.) Respondents were not entitled to an injunction since the defendant labor union was clearly in pursuit of a legitimate labor union objective. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Milk W. D. Union v. Lake Valley F. Products, 311 U. S. 91; Nann v. Raimist, 255 N. Y. 307.) The record establishes lack of good faith in forming the alleged partnership and that the employer-employee relationship continued between the former employer and the other plaintiffs after the signing of the alleged partnership agreement. (Saito v. Waiters & Waitresses Union, Local 2, 12 N. Y. S. [2d] 283.) The trial court committed reversible error by in effect refusing to try the issue of the bona fides of the alleged partnership.

      David L. Delman for respondents.
    None of the provisions of section 876-a of the Civil Practice Act are applicable to the plaintiffs and under no theory can it be said that a labor dispute exists or existed at the place of business of the plaintiffs or between them and the defendant. (Thompson v. Boekhout, 273 N. Y. 390; Luft v. Flove, 270 N. Y. 640; Miller v. Fish Workers Union, 11 N. Y. S. [2d] 278; Jenkins v. Moyse, 254 N. Y. 319; Stalban v. Friedman, 11 N. Y. S. [2d] 343; Boro Park Sanitary Live Poultry Market Inc., v. Heller, 280 N. Y. 481; Kershnar v. Heller, 14 N. Y. S. [2d] 595.)
   Rippey, J.

After due trial of issues framed according to our practice, the Supreme Court, on the equity side, made findings of fact and conclusions of law upon which it granted a permanent injunction restraining and enjoining the defendants from stationing pickets at or near the plaintiffs’ place of business at 838 East 180th Street, Borough of the Bronx, City of New York, and from interfering with the plaintiffs’ customers who may seek to enter their place of business, or to prevent by coercion or otherwise any customers of the plaintiffs seeking to enter plaintiffs’ place of business, and from interfering in any other wise with the plaintiffs’ business.” Since the findings of fact were based upon sufficient evidence to support them, and the Appellate Division has affirmed the decree and made no new findings of fact, the findings of fact made by the trial court are not open for review by the Court of Appeals (Civ. Pr. Act, § 605), nor are we permitted to make new and additional findings of fact to form a basis to sustain the contention of the defendants. We must take the findings as made and determine the questions of law raised thereby.

The action was brought to restrain defendants from picketing plaintiffs’ premises and business and from illegally interfering with and injuring that business. There is nothing within the allegations of the complaint which brings the action within the provisions of section 876-a of the Civil Practice Act of this State. For that reason, among others, defendants contend that the judgment below must be set aside. The primary and principal issue litigated at the trial as raised by the answer was whether a labor dispute ” existed between the parties within the meaning, purpose and intendment of that act as construed by our State courts. To support defendants’ contention, they argue that a labor dispute existed between the plaintiff Loizides, who is claimed to have been operating a cafeteria at the location above specified with various non-union employees prior to April 22, 1939, and the defendants, and that such dispute held over and continued between the plaintiffs in this action and the defendants subsequent to that date. There are no findings of fact to support any such contention. . The facts as found show that the defendants established a picket line at and near the cafeteria on or about April 15, 1939. On April 22,1939, the plaintiffs in this action formed a partnership in accordance with the provisions of our partnership statute (Partnership Law, Cons. Laws, ch. 39) and filed a certificate as required by law that it was conducting business at the place indicated as The World Cafeteria.” Subsequently this action was commenced. Defendants sought to show that the partnership was a fraud and sham and not a bona fide partnership, that only one individual owned and operated the business, and that the other plaintiffs were merely employees. Upon conflicting evidence it has been found as matters of fact, conclusively binding on this court, that the plaintiffs were partners and, as such, sole owners and operators of the cafeteria, that the partnership was a valid partnership, and that plaintiffs as members of the partnership did all the work in connection with said cafeteria without any outside assistance. The trial court refused to find as requested by defendants, that the partnership was a fictitious arrangement among the plaintiffs entered into solely for the purpose of avoiding the unionization of the World Cafeteria and of applying to the court for an injunction restraining the defendant union from picketing the cafeteria, and that refusal to find has necessarily been approved by the lower court upon appeal. It has been specifically found that there was no labor dispute ” between the plaintiffs and any employees, or between the plaintiffs and the defendants, within the purview of section 876-a of the Civil Practice Act, that no employee of the plaintiffs ceased working because of any dispute as to the rate of wages or any other acts of the plaintiffs, and that no strike has ever been called at the plaintiffs’ place of business. The mere fact that no strike has been called does not make the picketing unlawful. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 263.) Nevertheless, there can be no labor dispute within the meaning of section 876-a unless there is employment. (Baillis v. Fuchs, 283 N. Y. 133, 137.) Upon the facts as found in this case, the partnership comes within the reasoning of and is controlled by the decision in Thompson v. Boekhout (273 N. Y. 390). The partnership was not a legal entity in the sense that its members were employees as in the case of a corporation. (Borough Park Sanitary Live Poultry Market, Inc., v. Heller, 280 N. Y. 481.) The findings in this case give us no information as to whether the objective of the defendants was proscribed as in Opera on Tour, Inc., v. Weber (285 N. Y. 348) or lawful as in Wohl v. Bakery & Pastry Drivers & Helpers Local 802 (284 N. Y. 788, revd. 315 U. S. 769). Had the court found, as requested by the defendants, that the partnership was formed to avoid the establishment of a picket fine with men walking up and down in front of the place, it would not have changed the result. (Cf. Jenkins v. Moyse, 254 N. Y. 319.) Accordingly, the action rests upon the principles of the common law without preliminary compliance with the provisions of section 876-a of the Civil Practice Act required.

It has been found by the lower courts that the picketing of the World Cafeteria was at all times orderly and peaceful and that no acts of violence had been threatened or committed by the defendant union. The defendants had the constitutional right accurately and truthfully and without violence, force or coercion, or conduct otherwise unlawful or oppressive to make their grievances known to the public. (Wohl v. Bakery & Pastry Drivers & Helpers Local 802, supra.) But a citizen is not required to tolerate peaceful picketing accompanied by untruthful representations, interference with his business or coercive conduct designed to injure or destroy his business whether a labor dispute exists or not. (Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150; Wohl v. Bakery & Pastry Drivers & Helpers Local 802, supra.) Unlike the record in the Wohl case, there are findings of fact here to sustain the decree. In this case it has been found that individuals under the control of the defendants have been picketing the plaintiffs’ cafeteria, bareing false and misleading signs that tend to create the impression that the plaintiffs are unfair to organized labor and that the pickets were previously employed by the plaintiffs, which representations were false and known by the defendants to be false, since there were no employees at the place of business of the plaintiffs and the plaintiffs were not unfair to organized labor; that such pickets approached prospective customers of the plaintiffs and told them that the plaintiffs’ restaurant was giving bad food, and that by patronizing said restaurant they were aiding the cause of Fascism; and that the pickets directed customers about to enter the plaintiffs’ place of business to a cafeteria across the street which was a competitor of the plaintiffs. By no authoritative decision has it been held that such conduct is not subject to judicial restraint. On the contrary, unlawful and coercive conduct will be enjoined where it has been found that such conduct has caused damage and will cause irreparable damage if permitted to continue and the party who is so damaged or threatened to be damaged has no adequate remedy at law. (Busch Jewelry Co. v. United Retail Employees’ Union, supra, p. 156.)

No exceptions appear in the record which raise any other question of law open for our further consideration.

The judgment should be affirmed, with costs.

Desmond, J.

(dissenting). The judgment should be reversed and the complaint dismissed. The issuance of an injunction in a case like this is positively forbidden by section 876-a of our Civil Practice Act, by the decisions of this court and by the decisions of the United States Supreme Court construing the free speech guaranty of the Constitution of the United States.

Plaintiff Loizides owned a restaurant. The other six plaintiffs were his employees. Defendant union tried to negotiate a collective bargaining agreement with owner Loizides. Loizides refused to negotiate. Beyond any doubt there was then and there a labor dispute. The union, believing — and surely not being without good reason for that belief — that it had a settled and absolute right to advertise to the public the grievance it claimed to have, began to picket the restaurant. The picket line ” consisted of just one picket. The Trial Justice has specifically found that the one-man picketing was at all times orderly and peaceful,” that “ no acts of violence have been threatened or committed by the defendant union,” that the picket on the picket Une * * * requested the public not to patronize said cafeteria since it was unfair to union labor, and made no other statements or representations.” If the picketing described in those findings, herein quoted verbatim, is unlawful, then picketing has been absolutely and completely outlawed in this State.

Owner Loizides, for the express and admitted purpose of removing the one-man picket line from in front of his restaurant, called together his six employees and with them signed a document which made them all his partners. Having thus completely changed the aspect of his enterprise, Loizides, with all his newly-minted partners joined as co-suitors, demanded of the court of equity that defendants be forthwith and forever enjoined from picketing the cafeteria. Section 876-a troubled Loizides not at all. He and his erstwhile workers, he explained to the court, were now co-equals and co-proprietors, and so, he argued, there could not be any labor dispute ” between the plaintiffs and the defendant union. Any labor dispute ” there might have been in the pre-partnership days, plaintiffs told the court, came to a full and final stop when the six employees, without leaving their posts or doffing their uniforms, assumed the roles of partners. Through such a device and on such an argument has the owner of this restaurant secured an injunction which in so many words prohibits any picketing of any kind whatever. No such injunction can be countenanced by this court. To affirm that injunction we must hold that this is not “ a case growing out of a labor dispute.” (Civ. Pr. Act, § 876-a.) Such a holding is impossible. Whether we take the allegations of the complaint, the admitted facts, the trial court’s findings or any or all of them, the complaint must be dismissed.

True, there are no findings that the dispute which concededly existed before the picketing began on April fifteenth and concededly continued until the partnership agreement was signed, held over and continued after the partnership had sprung into being on April twenty-second. But Loizides himself testified that he adopted the partnership plan to stop the picketing. What finding was necessary after that frank admission? There is no dispute of fact here. The injunction depends solely on an impossible construction of the law.

We are told that this action rests not on section 876-a, but on the principles of the common law. There is no point in reviewing the numerous decisions of this court in recent years denying the power to issue injunctions against peaceful, orderly picketing without threats or intimidation in bona fide labor disputes. Any common law of this State holding to the contrary must date back before Exchange Bakery & Restaurant, Inc., v. Rifkin (245 N. Y. 260), Stillwell Theatre, Inc., v. Kaplan (259 N. Y. 405) or J. H. & S. Theatres, Inc.,v. Fay (260 N. Y. 315), all of which cases antedate the enactment of section 876-a and all of which are positive in their affirmations of the right to picket peacefully.

Even if this injunction were not unlawful under section 876-a and under our decisions, early and late, even if there were no labor dispute and no case growing out of a labor dispute, this ban against peaceful picketing would still be violative of the Federal Bill of Rights. Most plainly is this pointed out in Bakery & Pastry Drivers & Helpers Local 802 v. Wohl (315 U. S. 769), where the Supreme Court noted ip. 774) that the New York courts had seemed to assume that the legality of the injunction followed from a determination that a labor dispute was not involved. “ Of course,” said the Supreme Court “ that does not follow: one need not be in a labor dispute ’ as defined by state law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive.” (See, also, Thornhill v. Alabama, 310 U. S. 88, 100; Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S. 287, 296-298; American Federation of Labor v. Swing, 312 U. S. 321.) Nothing is now better settled than that picketing is an exercise^of the constitutional right of free speech, that it needs no authorization from the State, which may in proper case regulate picketing, but may never forbid it.

The Supreme Court decisions just cited make it unnecessary to deal extensively with Thompson v. Boekhout (273 N. Y. 390), wherein this court declared the absence of a labor dispute in a case where the owner of a small business decided to run it without any employees at all. The constitutional question was not there raised. Incidentally, this court later made plain that the Thompson v. Boekhout ruling was to be limited to its special facts, for in Boro Park S. L. P. Market, Inc. v. Heller (280 N. Y. 481) this court decided that a labor dispute did exist with defendant union though all those employed in plaintiff’s business were stockholders of plaintiff corporation. Here Loizides did not discharge his employees and thereafter do all the work himself. He conferred a new status on their labors by drawing up a partnership agreement, which, while “ vahd ” as the court held, was nevertheless a device (see Matter of Scott v. Miller, 285 N. Y. 760) to keep out the union while retaining the same services of the same workers as partners.”

We have not overlooked findings of fact numbered Fourth and Tenth. The first of these charges the picket with bearing false and misleading signs that tend to create the impression that the plaintiffs are unfair to organized labor, and also tend to create the impression in the eyes of the public that these pickets were previously employed by the plaintiffs.” Actually the picketing signs said nothing about a strike or a previous employment; they simply announced (according to plaintiff Loizides): “ This place is unfair to organized labor, please help us.” Such statements cannot be enjoined. (Wilner v. Bless, 243 N. Y. 544; Nann v. Raimist, 255 N. Y. 307.) The Tenth finding is that the picket told prospective customers of the cafeteria that the cafeteria served bad food and that by patronizing it customers were aiding the cause of Fascism.” But there is another finding (Twenty-third) above referred to, which states positively that the picket “ requested the public not to patronize said cafeteria since it was unfair to union labor, and made no other statements or representations.” The Tenth and Twenty-third findings are obviously irreconcilable and, applying as we must the settled rule that, where there are conflicting findings, appellants get the benefit of the findings most favorable to them, we ignore the Tenth finding. Of course, even were that finding binding on us, the complaint would still have to be dismissed for non-compliance with section 876-a.

In this small lawsuit there is at hazard, just as surely as in great strifes that sweep the world, an ancient and inalienable right. If that right cannot find vindication in the courts, it has little chance elsewhere.

The judgment should be reversed, and the complaint dismissed, with costs.

Finch Lewis and Conway, JJ., concur with Rippey, J., Desmond, J., dissents in opinion in which Lehman, Ch. J., and Lotjghkan, J., concur.

Judgment affirmea.


source: Caselaw Access Project

license: Public Domain

text:
    Elias Tsakires et al., Copartners under the Name of The Cosmo Cafeteria, Respondents, v. William Mesevich, Individually and as President of Cafeteria Employees Union, Local 302, et al., Appellants.
    Argued October 19, 1942;
    decided January 21, 1943.

      Louis B. Boudin and Irving B. Feinberg for appellants.
    The facts in this case are essentially the same as those in Angelos v. Meservich (289 N. Y., 498 [immediately preceding]), differing only in minor matters which have no bearing upon the merits of the case. The record establishes the allegations of bad faith and fraud contained in the answer and that the employer-employee relation still exists between the former employer as employer and the other plaintiffs as employees. Section 876-a of the Civil Practice Act applies not only to existing labor disputes, but to cases growing out of labor disputes. The plaintiffs failed to comply with the requirements of section 876-a and their suit could only be sustained upon the theory that no labor dispute was ever involved. Since that is not claimed, and the trial court expressly found to the contrary, the complaint should have been dismissed under the provisions of section 876-a.
    Peaceful picketing for a legitimate labor union objective, such as unionization, may not be enjoined by the courts.

      David L. Delman for respondents.
    This appeal involves the identical questions of fact and law as the companion appeal, where the plaintiffs are Gus Angelos, et al., against the same defendants. (Angelos v. Meservich, 289 N. Y. 498.) None of the provisions of section 876-a of the Civil Practice Act are applicable to these plaintiffs and under no theory can it be said that a labor dispute exists at the place of business of these plaintiffs or between them and the defendant.
   Rippey, J.

The controlling facts in this case do not substantially or materially differ from those in the case of Angelos et al., against the same defendants in which a decision is being handed down herewith. (Angelos v. Mesevich, 289 N. Y. 498.) The unlawful conduct of defendants here found to exist is similarly subject to judicial restraint.

The judgment appealed from should be affirmed, with costs.

Desmond, J.

(dissenting). This case is so nearly identical with Angelos v. Mesevich, decided herewith, that it should follow the same course. The judgment should be reversed and the complaint dismissed, with costs.

Finch, Lewis and Conway, JJ., concur with Rippey, J., Desmond, J., dissents in opinion in which Lehman, Ch. J., and Lough-ran, J., concur.

Judgment affirmed.


author: Per Curiam.

text:
    In the Matter of the Estate of Charles H. Campbell, Deceased. Johnsie B. Burnham, as Administratrix de Bonis Non of the Estate of Charles H. Campbell, Deceased, Appellant. Dudley Dupignac et al., Respondents.
    Argued December 7, 1942;
    decided January 21, 1943.

      George Gordon Battle and Thomas Stokes for appellant.
    The majority of the Appellate Division erred in finding that petitioner was guilty of laches. (30 C. J. Secundum, §§ 120, 128; 10 R. C. L. tit. “ Equity,” § 153, p. 405 ; 2 Pomeroy’s Equity Jurisprudence [2d ed.], § 917; Townsend v. Vanderwerker, 160 U. S. 171; Miles v. Wheeler, 43 Ill. 123; Matter of Lord, 78 N. Y. 109.) The majority of the Appellate Division erred in finding that there was no evidence of duress. (Matter of Howell, 215 N. Y. 466; Frost v. Bachman, 259 App. Div. 745; 283 N. Y. 744.) The majority of the Appellate Division erred in its finding that there was a ratification of the retainer agreement. (Deyo v. Hudson, 225 N. Y. 602; Adams v. Gillig, 199 N. Y. 314.) By reason of gross misconduct the attorneys have forfeited their right to any compensation whatsoever. (Andrews v. Tyng, 94 N. Y. 16; Chatfield v. Simonson, 92 N. Y. 209; Matter of Conrad, 105 S. W. [2d] 1; Adriaans v. Dill, 37 App. [D. C.] 59; Hoboken Trust Co. v. Norton, 107 Atl. 67.)

      Henry A. Uterhart and Alfred M. Schaffer for Dudley Dupignac respondent.
    The retainer contract is valid and cannot be rescinded under the admitted facts and surrounding circumstances of its making. (Greenberg v. Remick & Co., 230 N. Y. 70; Rodkinson v. Haecker, 248 N. Y. 480; Matter of Woolfson, 158 Misc. 928; Matter of Reisfeld, 227 N. Y. 137; Matter of Peterson, 257 App. Div. 449; Matter of Hirsch, 154 Misc. 736; Matter of Young, 156 Misc. 795; Matter of Sasson, 231 App. Div. 524; Audley v. Jester, 148 App. Div. 94; 212 N. Y. 573.) The appellant is precluded from rescinding after a lapse of five years and eleven months and the finding of laches by the Appellate Division. (Matter of Woolfson, 158 Misc. 928; Maisel v. Sigman, 123 Misc. 714.) There is no evidence that the retainer was secured by coercion. (Maisel v. Sigman, 123 Misc. 714; Kamenitsky v. Corcoran, 177 App. Div. 605; Sylvan Mortgage Co. v. Stadler, 115 Misc. 311; 199 App. Div. 965.) There is no evidence of fraud or misrepresentation upon which petitioner relied to her damage. (McNulty v. Gilbert, 154 App. Div. 298; Kley v. Healy, 149 N. Y. 343; Reiss v. Levy, 175 App. Div. 938.)

      William Whynman for Homer Folks et al., as executors of Ralph Folks, deceased, respondents.
    There is sufficient evidence to substantiate the finding of inexcusable laches. (Matter of Woolfson, 158 Misc. 928; Hulbert v. Hulbert, 216 N. Y. 430; Marcus v. Village of Mamaroneck, 283 N. Y. 325; Hathaway v. Payne, 34 N. Y. 92; Hawley v. Cramer, 4 Cow. 717; Stehl v. Uris, 210 App. Div. 444; Seligson v. Weiss, 222 App. Div. 634; Matter of Boylan, 249 App. Div. 35; Feldman v. Metropolitan Life Ins. Co., 259 App. Div. 123; Galway v. Metropolitan El. Ry. Co., 128 N. Y. 132.)
   Per Curiam.

The facts sustain the findings of the Surrogate. Section 474 of the Judiciary Law (Cons. Laws, ch. 30) relating to attorneys’ fees and retainers, must be read in the light of the fact that the relationship of attorney and client was already in existence between this petitioner and her attorneys when this agreement was made. As showing the trust and confidence reposed in these attorneys by petitioner, when the moneys were received she assented to their distribution without taking account of her right to deduct therefrom the taxes and other expenses payable by the estate of which she was a beneficiary. The contingent arrangement exacted from petitioner by these attorneys provided for a payment fourfold greater than that which was paid to the attorney who actually conducted the litigation. The trial consisted in the main only of introducing the written agreements in evidence and requesting the court to construe the same.

The charge of laches against petitioner must be considered in connection with the fact that the relationship of attorney and client continued, and that petitioner was under her attorneys’ advice regarding the difficult nature of the litigation, and the necessity of consulting no one else until the relationship of attorney and client was ended and she obtained independent advice. From thenceforth the matter was prosecuted with all reasonable diligence.

The order of the Appellate Division should be reversed, with costs, and the decree of the Surrogate’s Court affirmed.

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

Judgment accordingly.


author: Conway, J.

text:
    Betty Berg, Respondent, v. Edward J. Berg, Appellant.
    Argued October 5, 1942;
    decided January 21, 1943.

      Bartle Gorman for appellant.
    The finding that defendant did fail or refuse reasonably to support and provide for plaintiff is error. (DeBrauwere v. DeBrauwere, 203 N. Y. 460; Matter of Sanderson v. Sanderson, 149 Misc. 88; Williams v. Hutchinson, 3 N. Y. 312; 17 Am. Jur. 229; Davis v. Davis, 1 Hun, 444; Reichman v. Reichman, 58 How. Pr. 278.)

      Thayer Burgess and John M. Liddy for respondent.
    There is no question for review by this court. (Bernstein v. Kritzer, 253 N. Y. 410.) In any event there is sufficient evidence to sustain the finding that defendant failed and refused to provide for the plaintiff in accordance with his means. (DeBrauwere v. DeBrauwere, 203 N. Y. 460; Garlock v. Garlock, 279 N. Y. 337.) The court would also have been justified in finding that the defendant was guilty of cruel and inhuman treatment. (Jury v. Jury, 275 N. Y. S. 586; Fisher v. Fisher, 223 App. Div. 19; 250 N. Y. 313; Pearson v. Pearson, 230 N. Y. 141; Fleischer v. Fleischer, 224 App. Div. 46; Tower v. Tower, 134 App. Div. 670; Heylmun v. Heylmun, 119 Misc. 113.)
   Conway, J.

Plaintiff sought a decree of separation from the defendant, based upon allegations (1) of cruel and inhuman treatment and conduct and (2) that the defendant failed to furnish suitable support for her. The defendant counterclaimed for a separation upon the ground that, without cause, plaintiff abandoned him.

The parties were married in 1935 when the plaintiff was thirty-six and the defendant fifty-one years of age. Each of them' had three children. Plaintiff had divorced her first husband. Defendant had been a widower for some years. He was an architect with a diminished income. So the parties began housekeeping together in the defendant’s home and plaintiff brought into that home her three children. The defendant’s two older sons were already there.

Plaintiff claimed that she could not get along with one of the children and constantly called the defendant’s attention to his son’s alleged conduct. That naturally led to bickering. In view of the memorandum of the trial court and the testimony, we may well assume that the alleged conduct was but imagined by plaintiff. She said she left the home because she could not stand her husband’s “ tantrums ” any more and because his two sons were disagreeable. On the night before her departure, she and defendant had occupied the same room. She was there when he and his two sons left the house in the morning. When they returned in the evening, she had gone.

In support of her second claim she said that the defendant had failed to provide for her support and that she had had to borrow money to pay for necessaries for herself and children and for running the household. She said she furnished most of the furniture and furnishings but later admitted that she had but supplemented some of the furnishings with some household furniture she owned. She testified on direct examination that before their marriage defendant had borrowed $100 to go on their honeymoon and had never returned it. On cross-examination she admitted that on the back of a check for $100 dated eleven days after their marriage and drawn by defendant to her, there appeared her endorsement. She said she never remembered seeing it but supposed it must have been in repayment.

The defendant, testifying in his own behalf, introduced in evidence a statement of the moneys which he had given plaintiff to run the household during their married life. The statement was in plaintiff’s own handwriting. It had been given to defendant sometime in January, 1938. Plaintiff said that it contained the approximate amount used for the house but that some of the money had been given to her by her family. She admitted, however, that she had had $125 a month for two and one-quarter years. Defendant testified that he did not know whether or not the statement was accurate since he had kept no account himself but he assumed that it was correct. It showed a total amount for twenty-seven months of $3,456.75, an average of $128 a month. For November and December, 1935 the average was $133 per month; for the year 1936 it showed an average of $150 a month; for the year 1937 an average of $105 a month. In the month of January, 1938, the plaintiff left defendant’s home. In that month up until the time of her going, the amount given her was $58. In addition defendant paid for taxes, insurance, light and fuel.

Defendant produced his income tax returns. They showed that his net income for the years 1936 and 1937 was less than the amounts he had given plaintiff for that same period.

The trial court found that defendant had not treated plaintiff in a cruel and inhuman manner and that his conduct had not been such as rendered it unsafe and improper for plaintiff to cohabit with him. The court found that plaintiff justifiably and with good cause separated from defendant solely upon the ground that he had failed to support and provide for her “ in accordance with his means and the situation of the parties.”

That was not the reason the plaintiff gave while testifying as the reason for her leaving and there is no evidence in the record that the plaintiff ever directly told defendant that he was failing to provide for the household adequately. That this was clear to the trial court is evident from that portion of his memorandum which reads as follows: “ The plaintiff had no part in the accumulation of the frozen assets [mortgaged real estate] which constitute defendant’s wealth. She did not make it clear to defendant that lack of funds was the impelling motive which moved her to separate from him. Had she done so in a firm clear-cut way, it may well be that mutual good faith of the parties would have found a way to avoid the separation.”

There is no evidence to show that defendant ever directly refused the plaintiff money, food or clothing. On the contrary, for instance, plaintiff admitted that a week or two before she abandoned defendant she, at his request, had gone to a dress shop and bought quite a supply of dress goods.” From the record it appears that defendant thought he was doing his part in accordance with his income. There is no evidence in the record to show that any other member of the family either among the children of plaintiff or defendant complained at any time of not receiving enough to eat or of being inadequately clothed or housed. That defendant failed to supply adequate support for his family is not sustained by any evidence. Defendant’s counterclaim for a separation upon the ground that plaintiff had unjustifiably abandoned him should not have been dismissed.

The judgments should be reversed and a new trial granted, without costs.

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

Judgments reversed, etc.


author: Lottghran, J. Lehman, Ch. J.

text:
    Arthur C. Smith, Respondent, v. City of New York, Appellant.
    Argued October 6, 1942;
    decided January 21, 1943.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum, Paxton Blair and Seymour B. Quel of counsel), for appellant.
    Appropriations may be made, expenses incurred and contracts entered into on behalf of the city only in accordance with the Charter and statutory provisions. Contracts entered into in violation of Charter provisions or by persons unauthorized to make them are not binding on the city. (Matter of La Guardia v. Smith, 288 N. Y. 1; Chambers v. City of New York, 286 N. Y. 308; Donovan v. City of New York, 33 N. Y. 291; Williams v. City of New York, 118 App. Div. 756; 192 N. Y. 541; Clarke Co. v. Board of Education, 156 App. Div. 842; 215 N. Y. 646; McSpedon v. Mayor, 20 How. Pr. 395; Lyddy v. Long Island City, 104 N. Y. 218; Scarborough Properties Corp. v. Village of Briarcliff Manor, 278 N. Y. 370; People ex rel. U. S. Standard Voting Machine Co. v. City of Geneva, 98 App. Div. 383; Empire Voting Machine Co. v. City of Chicago, 267 Fed. 162; Seif v. City of Long Beach, 286 N. Y. 382.) The restrictions apply to Councjlmanic investigations. (Matter of LaGuardia v. Smith, 288 N. Y. 1; Carr v. State, 231 N. Y. 164; People ex rel. Hastings v. Hofstadter, 258 N. Y. 425; Matter of McCarthy v. LaGuardia, 283 N. Y. 701; Edison Electric Co. v. City of Pasadena, 178 Fed. 425.) The terms of the resolution creating the special committee expressly prohibited it from incurring obligations requiring the expenditure of city money without the consent of the Board of Estimate. (Howard v. City of New York, 236 N. Y. 91.)

      Julius Hallheimer for respondent.
    In the exercise of its Charter powers to investigate any matter relating to the property, affairs or government of the city the Council may incur any reasonably necessary expense free of control by any other city authority. (Charter of City of New York [1938], § 43; Matter of Radio Station W N Y C, 169 Misc. 502; 255 App. Div. 844; 280 N. Y. 629; Barry v. City of New York, 175 Misc. 712; 261 App. Div. 957; Chambers v. City of New York, 261 App. Div. 807; 286 N. Y. 308; Matter of LaGuardia v. Smith, 288 N. Y. 1; Matter of Herlands v. Surpless, 171 Misc. 914; 258 App. Div. 275 ; 282 N. Y. 647; Lowe v. City of New York, 240 App. Div. 484; 265 N. Y. 583; Heaton v. City of Cohoes, 270 N. Y. 222; O’Brien v. City of Niagara Falls, 65 Misc. 92; Judson v. City of Niagara Falls, 140 App. Div. 62; 204 N. Y. 630; Barry v. United States ex rel. Cunningham, 279 U. S. 597; McGrain v. Daugherty, 273 U. S. 135; People ex rel. Schanck v. Green, 64 N. Y. 499; State v. Haynes, 50 N. J. L. 97.) The appellant misinterprets the unambiguous language of the resolution.

      Leonard S. Saxe, Abraham Heller and Emil K. Ellis, in person, for Emil K. Ellis, amicus curias, appearing in support of position of respondent.
    The express legislative power to investigate any matters relating to the property, affairs or government of the city of New York (Charter, § 43) necessarily empowers the Council by implication to incur reasonable expenses in the exercise of said power without dependence upon the Board of Estimate for a prior specific appropriation. (Matter of Federal Land Bank of Springfield v. Pickard, 169 Misc. 753; McCullough v. State of Maryland, 4 Wheat. 316; Mayor v. Sands, 105 N. Y. 210; People v. Davis, 78 App. Div. 570; Matter of Seneca Oil Co., 153 App. Div. 594; 208 N. Y. 545; People ex rel. Huntington v. Crennan, 141 N. Y. 239; People ex rel. Shanck v. Green, 64 N. Y. 499; Judson v. City of Niagara Falls, 140 App. Div. 62; 204 N. Y. 630; O’Brien v. City of Niagara Falls, 65 Misc. 92; Treeman v. Perry, 11 Okla. 66; Huron v. Campbell, 30 S. D. 309.) The Charter clearly provides section 21 that the concurrence of any other branch of the city is unnecessary to the exfercise o£ legislative power by the Council. (Matter of LaGuardia v. Smith, 288 N. Y. 1; Matter of Radio Station W N Y C, 169 Misc. 502; 255 App. Div. 844; 280 N. Y. 629; People ex rel. Hallock v. Hennessy, 205 N. Y. 301; People v. Ryan, 274 N. Y. 149; Surace v. Danna, 248 N. Y. 18.) In the performance of its legislative power of investigation conferred upon it by section 43, the Council is not an “ agency ” within the intendment of the term as defined by the Charter and is not subject to the restrictions of section 891 thereof. (Matter of Kay v. Board of Higher Education, 260 App. Div. 9; Barry v. City of New York 175 Misc. 712; 261 App. Div. 957; Matter of Ellis, 176 Misc. 887;, Matter of Joint Legislative Committee, 285 N. Y. 1.)
   Lottghran, J.

On June 14, 1938, the City Council of the city cf New York adopted a resolution designating seven of its members as a special committee to look into the local handling of emergency unemployment relief. The Board of Estimate of the city twice refused to make an appropriation for the expenses of such an investigation. Plaintiff, a stenographer, thereafter reported the proceedings of the committee on the faith of its promise that for work actually done he would be paid at the approved and customary rate for that type of service.” In an action against the city for the value of his services ($747.25), he had judgment which was unanimously affirmed. We gave the city leave to appeal. The controversy is one as to the scope and effect of various provisions of its municipal charter. (N. Y. City Charter, effective Jan. 1, 1938.)

Section 891 provides: “No agency shall incur a liability or an expense for any purpose in excess of the amount appropriated or otherwise authorized therefor; and no charge, claim or liability shall exist or arise against the city, or any of the counties contained within its territorial limits, for any sum in excess of the amount appropriated or otherwise authorized for the particular purpose.” Sections 121, 122, and 123 provide that the Board of Estimate has in the first instance the duty to make appropriations for the governmental purposes of the city. The Corporation Counsel stands on these provisions. His main point is this: The Council is an agency of the city and so the plaintiff’s case fails for want of an appropriation by the Board of Estimate to cover the services rendered by him to the special committee of the Council.

For an answer, the plaintiff invokes sections 21 and 43. Section 21 says: “ The council shall be vested with the legislative power of the city, and shall be the local legislative body of the city with the sole power to adopt local laws under the provisions of the city home rule law or otherwise, without requiring the concurrence of any other body or officer except as provided in sections thirty-eight, thirty-nine and forty.” (§§ 38, 39 and 40 have no relevance to the present case.) Section 43 makes these provisions: “ The council shall have power from time to time to appoint a special committee to investigate any matters relating to the property, affairs or government of the city or of any county within the city. Any such committee shall have power to require the attendance and examine and take the testimony under oath of such persons as it may deem necessary.” We think the plaintiff is obviously right in his contention that such legislative functions of the Council cannot be deemed to be defeasible by means of a mere failure of the Board of Estimate to concur in an appropriation for the necessary expenses thereof.

In Chambers v. City of New York (286 N. Y. 308), we held the city liable for reasonable expenses of an exercise by the Council of its duties of organization and procedure as defined by section 30 of the Charter, though no appropriation for such expenses had been made by the Board of Estimate. On a contrary view, as we there said, the Board of Estimate would have a power of life or death over the Council — a result which, of course, was never intended. So in the present ease, as we believe, the fundamental design of the Charter requires us likewise to decide that the Council does not act as a departmental agency of the city when it exercises its legislative power by way of an investigation conducted pursuant to section 43.

Under section 43 the special committee was to take the testimony of such persons as it deemed necessary. By the resolution of the Council the committee was specifically directed “ to examine and report ” in respect of a number of detailed specifications of possible abuses in the local management of emergency unemployment relief. This extensive commitment could not have been discharged without the aid of a shorthand reporter. Hence the power of the committee to engage the services of the plaintiff was clear enough — unless indeed that power (as the city suggests) was here annulled merely because the resolution included a provision authorizing the committee to request that an appropriation for its expenses be made by the Board of Estimate. This last idea is quite refined and, as we apprehend, fails to take proper account of still another provision of the resolution which called upon all departments of the city government to cooperate with the special committee. We do not find any sufficient expression by the Council of an intent that its competent legislative action was in this instance to be subject to immediate administrative interdiction by the Board of Estimate. (Cf. Chambers v. City of New York, 286 N. Y. 308.)

The judgment should be affirmed, with costs.

Lehman, Ch. J.

(dissenting). Because in my opinion the principle of separation of governmental powers is clearly implicit in the Charter of the city of New York and express grants of broad powers to the executive and to the legislative branches of the city government, though subject to no express limitations, are subject to implied limitations arising from that principle, I was constrained to dissent from the decision of the court in Matter of La Guardia v. Smith (288 N. Y. 1). For the same reason I now concur in the opinion of Judge Loitghran so far as it holds that “ legislative functions of the Council cannot be deemed to be defeasible by means of a mere failure of the Board of Estimate to concur in an appropriation for the necessary expenses thereof.”

It follows, I do not doubt, that when the Board of Estimate fails or refuses to appropriate moneys reasonably required for a legislative investigation by a special committee, appointed by the Council in accordance with section 43 to investigate a matter relating to the property affairs and government of the city, the Council may direct the special committee to incur necessary expenses for services and material. It does not follow, and so far, I think, there is no room for difference of opinion, that without such direction, or at least authorization from the Council the special committee can incur expenses for which the city would be liable.

In Chambers v. City of New York (286 N. Y. 308) the Council adopted a resolution that when the committee just appointed reports, it return in full the evidence taken before it; that the said evidence be taken verbatim and transcribed and that a copy thereof be furnished to each member of the Council.” Implied in the italicized words there is an unequivocal direction or authorization to incur the necessary expenses for stenographic and transcribing services. We held that for such services the city was liable. In this case I find no basis for any implication that without appropriation by the Board of Estimate the special committee is directed or authorized by the Council to incur any expenses in the course of its investigation. The resolution, indeed, expressly provided “if in the judgment of the Committee an appropriation of funds be needed for anticipated expenses of such Committee, that, at the proper time, the necessary request be made to the Board of Estimate for such money as may be adequate for such expenses.” This provision of the resolution shows, it seems to me, a manifest intention to withhold from the committee, in the absence of a previous appropriation, any authority to incur expenses necessary for an investigation which might extend into such undefined fields as the committee might deem germane to the inquiry. That is in accordance with sound legislative practice. I know no precedent in legislative practice for a grant of such broad authority to a subcommittee and I question whether such a grant would be within the power of the Legislature.

The judgment should be reversed and the complaint dismissed.

Finch, Bippey, Lewis, Conway and Desmond, JJ., concur with Loughran, J., Lehman, Ch. J., dissents in opinion.

Judgment affirmed.


author:
Lehman, Ch. J.
      Conway, J.

text:
    The People of the State of New York, Respondent, v. Irving Nitzberg, Appellant.

      Argued October 16, 1942;
    decided January 21, 1943.

      I. Maurice Wormser, Martin W. Littleton and Richard H. Brown for appellant.
    The indictment was a nullity because the only evidence adduced before the grand jury was the uncorroborated testimony of accomplices, and no corroborating evidence was submitted connecting defendant with the crime • charged. Therefore, the motion of defendant to dismiss the indictment, because found only on the testimony of accomplices who were uncorroborated, should have been granted, and its denial is reversible error. (Code Crim. Pro., §§ 256, 258, 399; People v. Vollero, 108 Misc. 635; 226 N. Y. 587; People v. Burleson, 119 Misc. 107; People v. Acritelli, 57 Misc. 574; People v. Stern, 33 Misc. 455; People v. Evans, 81 Misc. 606; People v. Dally, 174 Misc. 830; People v. Nicosia, 164 Misc. 152; People v. Sweeney, 213 N. Y. 37; People v. Purtell, 243 N. Y. 273: People v. Smith, 172 N. Y. 210; People v. Sexton, 187 N. Y. 495.) The trial of defendant upon an indictment which was based upon concededly insufficient evidence was in violation of the constitutional right guaranteed to him by section 6 of article 1 of the State Constitution. (Jones v. Robbins, 8 Gray, 329; People v. Bogdanoff, 254 N. Y. 16; People ex rel. Battista v. Christian, 249 N. Y. 314; Matter of Mackin v. United States, 117 U. S. 348; United States v. Moreland, 258 U. S. 433; Matter of Bain, 121 U. S. 1; People v. Geyer, 196 N. Y. 364; People v. Bramwich, 200 N. Y. 385; People v. Sexton, 187 N. Y. 495; People v. Glen, 173 N. Y. 395; People ex rel. Hirschberg v. Supreme Court, 269 N. Y. 392; United States v. Coolidge, 2 Gall. 364; People ex rel. McGowan v. Warden of City Prison, 155 App. Div. 484; People ex rel. Pantiel v. Warden, 286 N. Y. 632.)

      Thomas Cradock Hughes, Acting District Attorney (Edward H. Levine of counsel), for respondent.
    No constitutional question is here presented. (People v. Petrea, 92 N. Y. 128; People v. Costello, 1 Den. 83; People v. Dyle, 21 N. Y. 578; Dunn v. People, 29 N. Y. 523; Lindsay v. People, 63 N. Y. 143; People v. Turner, 117 N. Y. 227; People v. Johnson, 185 N. Y. 219; People v. Glen, 173 N. Y. 395; People ex rel. Battista v. Christian, 249 N. Y. 314.) The defendant may not now have the indictment dismissed in disregard of the points: (1) That he has waived his right to attack the indictment; (2) that it is not well settled that an indictment based on accomplice testimony is bad; and (3) that the object is to prevent the People from reading in evidence the testimony of a witness who died after the first trial. (People v. Willett, 213 N. Y. 368; People v. Sweeney, 213 N. Y. 37; People v. D' Argencour, 95 N. Y. 624; People v. Wiechers, 179 N. Y. 459; People v. Sheffield-Farms-Slawson-Decker Co., 206 N. Y. 79; People v. Giordano, 114 Misc. 62; 231 N. Y. 633; People ex rel. Giallarenzi v. Munro, 150 Misc. 41; People ex rel. Rao v. Warden of City Prison, 170 Misc. 834.)
   Lehman, Ch. J.

The defendant was indicted for murder in the first degree for the killing of Albert Shuman on January 9, 1939. The indictment was filed on July 2,1940, and the defendant pleaded not guilty on July third. He was tried in May, 1941, found guilty by the jury and sentence of death was pronounced on June second. Upon appeal to this court the judgment of conviction was reversed on December 4, 1941. A motion for reargument made by the District Attorney was denied in February, 1942. He was again tried upon the same indictment and now appeals from the judgment of conviction rendered March 23, 1942, upon the second trial.

Upon the first trial one Abraham Heles, a self-confessed accomplice in the killing of Shuman, testified in effect that his business ” was murder in Brooklyn, that he was told by one of his bosses in such “ business that Shuman was giving the police information about bfm and that Shuman must be killed; that the witness then enlisted the services of this defendant as an aide in the killing; and that pursuant to a prearranged plan the defendant shot and killed Shuman. Two other men who were members of the same gang conducting the business ” of murder, and who were accomplices in the killing, also testified against the defendant. The defendant denied their story and testified that he had no connection with the gang and was not acquainted with any of the men who, according to the testimony of their accomplices, were members of the gang. To furnish the corroboration of the testimony of the accomplices which is required by the statute (Code Cr. Pro., § 399), the People produced three other witnesses who, it is said, were not accomplices. The judgment entered upon the verdict of the jury upon the first trial was reversed for error in the charge, not for insufficiency of the evidence; but in appraising the effect of the error and determining whether it might be disregarded, the prevailing opinion pointed out that “ this defendant took the stand. His guilt is far from being clearly exhibited by the record. Of the three witnesses for the People who gave evidence sufficient to satisfy the statutory requirement of corroboration of Heles two had been prisoners in a jail where the defendant had been confined. Their testimony was that the defendant admitted his guilt to them or in their hearing to persons who visited him there. The third of these witnesses was a thrice-convicted criminal.” (287 N. Y. 183, 193.)

An indictment must be based upon evidence which in the judgment of the grand jury “ would, if unexplained or uncontradicted, warrant a conviction by the trial jury.” (Code Cr. Pro., § 258.) “It is manifest, therefore, that if the only testimony before the grand jury is the testimony of accomplices, it cannot be said to be sufficient, if unexplained or uncontradicted, to warrant a conviction by the trial jury ” and when it appears that an indictment is founded upon evidence which as matter of law is insufficient to warrant a conviction, the courts have power to set it aside. (People v. Sweeney, 213 N. Y. 37, 42.) “ This power is based upon

the inherent right and duty of the courts to protect the citizen in his ■ constitutional prerogatives and to prevent oppression or persecution. It is a power which the Legislature can neither curtail nor abolish, and, to the extent that legislative enactments are designed to effect either of these ends, they are unconstitutional.” (People v. Glen, 173 N. Y. 395, 400.)

A few days after the motion for reargument of the first appeal had been denied by this court, the defendant made a motion for the inspection of the minutes of the grand jury as a preliminary to a motion to dismiss the indictment. The motion was denied by an order entered February 17, 1942. A motion to dismiss the indictment made immediately thereafter on the ground that the indictment was based solely on the testimony of witnesses who were accomplices as matter of law was denied on February 24, 1942. Upon the appeal from the judgment of conviction entered upon the verdict of the jury rendered upon the second trial the defendant seeks to bring up these two orders for review.

We may upon this appeal disregard the order denying the motion for an inspection of the minutes if it appears, even without such inspection, that the testimony of accomplices was the only evidence before the grand jury, and that the indictment should have been dismissed on that ground. Unquestionably none of the three witnesses produced at the first trial to furnish corroboration of the testimony of the accomplices were heard by the grand jury before it indicted the defendant. The alleged admissions of guilt of the defendant were made to the two prisoners in the jail where the defendant was confined after the indictment was found, and the third corroborating witness, one David Price, a thrice-convicted criminal,” had testified at the first trial that he did not appear before the grand jury and had not informed the District Attorney that he had any information concerning the homicide until immediately before the trial began. There can be no doubt that the indictment was based upon evidence which, as matter of law, is insufficient, unless the grand jury had access to corroborative evidence which the District Attorney had failed to produce at the first trial of the indictment.

To prove that no additional evidence was produced before the grand jury, the defendant showed that upon the motion for a reargument the District Attorney had submitted an affidavit stating: We have no additional evidence to offer ” and that the Assistant District Attorney who participated in the preparation and the first trial of the case had on November 24, 1941 — while the appeal from the judgment rendered at that trial was pending in this court — asked in the Court of General Sessions of New York County that clemency be shown to one George Stern because George Stern had been helpful to the People in obtaining evidence against Nitzberg. The minutes of the hearing in the Court of General Sessions show that the Assistant District Attorney of Kings county at that time said in open court:

“ Nitzberg was indicted on the 2nd of July, 1940, and at that time the evidence against Nitzberg was only that of accomplices who had squealed, or opened up, to the district attorney of Kings County about the whole group of cases which were then being prosecuted in our office. We had no independent corroborative testimony upon which we could proceed against Nitzberg and the indictment went along for some time without being prosecuted because of that fact. A number of motions were made in the County Court to dismiss that indictment for lack of prosecution.
In the month of March, 1941, Judge Fitzgerald, in the County Court, ordered that we proceed with the trial of Nitzberg’s case on or before May 12th, otherwise he would dismiss the indictment. At that time we still had no corroborative testimony, or independent proof, upon which we could hope to base a conviction against Nitzberg.”

The District Attorney of Kings county did not assert upon the motion to dismiss the indictment that any corroborative testimony or independent proof ” had been in his possession or produced before the grand jury. As now appears, he could not have done so, for in an affidavit made by the District Attorney after the conclusion of the second trial, the District Attorney stated that in March, 1941, the principal evidence in our possession came from accomplices, and the necessary corroboration by way of independent proof was lacking.” Further reference to that affidavit will be made hereafter in this opinion. Since the affidavit was made after the motion to dismiss the indictment was decided, we refer to it at this point only because it destroys any possibility that the statements or admissions of similar nature made by the District Attorney or his assistant which were submitted upon the motion might be subject to some undefined limitation or explanation.

“ An indictment is a record of the court which imports absolute verity until properly impeached. (People v. Hulbut, 4 Denio, 133, 136.) The presumption is that an indictment is based upon legal and sufficient evidence until there is satisfactory proof to the contrary.” (Italics are new.) (People v. Glen, supra, p. 403.) In that case the court refused to set aside the indictment saying: “ In the case at bar there is no proof of that kind.” In the case we are now reviewing there is unchallenged proof to the contrary.” No presumption ” can overcome such proof. In an analogous situation, Mr. Justice Story, then sitting as a Circuit Judge, has said: “ Lee’s affidavit is direct and positive, as to a fact, of which he could not be ignorant. The counter affidavits are merely of impressions. The court must be governed by the rules of evidence, and the facts must therefore be taken to be as stated by Lee. Of the law arising upon these facts there can be no doubt. The Grand Jury is the great inquest between the government and the citizen. It is of the highest importance, that this institution be preserved in its purity, and that no citizen be tried, until he has been regularly accused by the proper tribunal. Every indictment is subject to the control of the court, and this indictment, having been found irregularly, and upon the mere statement of a witness without oath, which was not evidence, a cassetur must be entered.” (United States v. Coolidge, 2 Gall. 364; s. c. 25 Fed. Cas. 622.)

No person may be held or tried in this State upon a charge of felony unless that charge is made by the grand jury in an indictment based upon legal and sufficient evidence. Upon the uncontradicted proof that the evidence upon which the indictment in this case is based was insufficient as matter of law, the trial court would, it seems plain, have been bound to grant the motion if, before the first trial, the defendant had challenged the indictment by motion to dismiss. The question remains whether the court was bound to grant the motion to dismiss made after the defendant had been convicted upon a trial where evidence legally sufficient to satisfy the statutory requirement ” had been produced, though for errors in the charge the judgment of conviction had been reversed and a new trial ordered. The indictment described by Story and other judges as the great inquest between the government and the citizen ” is intended to give assurance to the citizen that he will not be held for trial until he has been accused before the appropriate tribunal upon evidence which is competent and legally sufficient, but it may be said that an indictment has performed its function when an accused has been tried and convicted and. the judgment of conviction is sustained by sufficient evidence and is otherwise in accordance with the law. Though the Legislature may not curtail the right of an accused to challenge the sufficiency of a charge upon which an accused is held for trial, the courts of this State have refused to dismiss an indictment upon the motion of a defendant made when the accused is held under a judgment of conviction after a valid finding of guilt by a trial jury. The Legislature has provided that a motion based upon objections to an indictment which appear on the face of the indictment must be made before or at the time when the defendant is called for judgment. (Code Cr. Pro., §§ 323, 331, 467, 469.) Though a motion to dismiss the indictment on the ground that it is based upon insufficient evidence is not within the scope of these statutory provisions, literally construed, we have held that the court may properly deny such a motion made after judgment has been entered upon a verdict untainted by any reversible error at the trial. (See People v. Giordano, 231 N. Y. 633.) The right to challenge the sufficiency of an indictment may be lost where the finding of guilt by the trial jury gives the same or greater assurance against oppression and persecution as an indictment based on sufficient evidence is intended to give before trial has been had.

A judgment of conviction which has been reversed and a new trial granted, because the finding of the trial jury is fatally tainted with error, furnishes no such assurance. When a new trial is ordered, it shall proceed in all respects as if no trial had been had.” (Code Cr. Pro., § 544.) If the defendant has not been regularly accused by the proper tribunal ” there is no charge pending upon which he can be tried again. An accusation by a grand jury made upon evidence which is declared by statute to be insufficient gains no additional force because the District Attorney, after thé accusation was made by the grand jury, has obtained other evidence which, if presented to the grand jury, might be sufficient to justify an accusation by the grand jury if, in its judgment, that evidence would warrant a conviction by the trial jury — nor has a finding by the trial jury at a trial so tainted with error that it has been set aside by an appellate court any further effect. The statute in plain language so provides and even without a statute the courts give no effect to a judgment which has been reversed. The defendant while held for a second trial after the judgment of conviction rendered at the first trial was reversed, had the same right to challenge the sufficiency and regularity of the accusation that he had before the abortive trial. He has a right to demand that an accusation, made upon insufficient evidence, be set aside so that he may not be tried upon an indictment found irregularly.” A judgment of a competent court of criminal jurisdiction may not be attacked collaterally nor the legality of detention by virtue of such a judgment questioned by a writ of habeas corpus. (Civ. Pr. Act, § 1231.) By failure to move to set aside the indictment before such judgment the defendant lost the right to attack the indictment while he was detained by virtue of the judgment. He did not by such failure waive the right to move to dismiss the indictment when the judgment was set aside. It does not appear that before judgment or even before the motion was made by the District Attorney for a reargument of the appeal from the judgment, the defendant knew that the indictment was based on incompetent or insufficient evidence and that he could obtain satisfactory proof ” sufficient to impeach the indictment.

It is true that if the indictment which was found irregularly ” is dismissed, the testimony of Reles who we have said was the “ chief witness for the People ” at the first trial will no longer be available. Reles died after the first trial and his testimony was read in evidence at the second trial, but it could not be read in evidence at the trial of a different indictment. That circumstance, it appears, influenced the denial of the motion to dismiss. We conclude that it furnishes insufficient ground for such denial.

The safeguards against unfounded accusation and unjust conviction provided for an accused by the Constitution and statutes may not be weakened by judicial decision to meet the supposed exigencies of a particular case. The guilty should not escape punishment, but punishment may follow only upon a finding of guilt by a jury upon a trial at which the safeguards provided for the protection of an accused have been zealously observed and guilt has been established by proof which conforms to legal standards. Repetition of what this and other courts have often said about the wisdom of adhering to such standards and applying every safeguard against possible oppression in the administration of the criminal law would serve no useful purpose. This case, exemplifies strikingly the wisdom of such adherence.

From July, 1940, to May, 1941, the defendant was in prison awaiting trial upon an indictment found upon evidence which even though unexplained and uncontradicted was, as matter of law, insufficient to warrant conviction. During this period, the defendant made unsuccessful motions to dismiss the indictment for lack of prosecution, but in March, 1941, as appears from this record, a judge of the County Court directed that the People proceed with the trial of the case on or before May twelfth, stating that otherwise he would dismiss the indictment. From the date when the indictment was filed, the District Attorney knew that he must obtain evidence to corroborate the testimony of accomplices and during most of that time he did not have such corroborative evidence, and did not know where he could obtain it. We feel entirely certain that the District Attorney would not countenance the conviction or even prosecution of an accused whom he believed innocent, nor would he stoop to seek evidence to convict even an accused of whose guilt he was convinced by dubious methods: Nonetheless, the more convinced of the guilt of the accused a District Attorney is, the more eager he might be to obtain corroborative evidence. Professional criminals would labor under no illusion about the benefit that might accrue to them if they furnished the corroborative evidence urgently needed by the District Attorney. The three witnesses who furnished such corroborative evidence were confirmed criminals and though it is abundantly proven by this record that the District Attorney made no promise to them that they would receive any benefit in consideration of their testimony, it is also abundantly proven that they did in fact obtain such benefits in recognition of their help. 1

In November, or December, 1940, the District Attorney's office obtained information that Roberts, a prisoner confined in the same jail as the defendant, might be able to give testimony that the defendant had admitted guilt to him. Three indictments for larceny of three automobiles were pending against Roberts. He pleaded guilty to grand larceny, first degree, on one of these indictments before he testified against this defendant but after he testified for the People at the first trial and on the day that trial ended the charge to which he had pleaded guilty was reduced to petit larceny and sentence was suspended. The other indictments pending against him were dismissed and Boberts was released. It is interesting though perhaps not relevant that he went South, stole another automobile and was serving a sentence of imprisonment in a Federal prison when he testified at the second trial.

The witness Zager apparently did not communicate with the District Attorney’s office until March, 1941, after the District Attorney had been notified that the defendant must be tried on or before May twelfth. Zager was then confined in Sing Sing prison where he was visited by an Assistant District Attorney. He was brought to New York City from Sing Sing prison on March 21, 1941, and kept in jail there till November, 1941, when he was returned to a State prison. Upon the request of the District Attorney a parole was granted Zager before the second trial, but he was informed that “if he is unwilling to testify or refuses to cooperate with the district attorney, such action on his part is- to be considered a violation of his parole.”

The third and most important witness produced to corroborate the accomplices was David Price. The appellant urges that Price, too, was an accomplice or, at least, that the jury might so find, but the trial judge charged that as matter of law he is not an accomplice. Since we have concluded that the indictment should be dismissed it is unnecessary to decide now whether upon this record the jury might have found that Price was a guilty participant in the killing. Price’s testimony was obtained only a few days before the first trial was begun. Shortly before that time one George Stem gave the District Attorney information that Price had played some part in the killing of Shuman for which the defendant was indicted. Price had been named as a co-defendant with Stern in two indictments then pending in New York county and the police of New York county were searching for Price. Through the information furnished by Stern, Price was found in New Jersey by detectives assigned to the office of the District Attorney of Kings county and brought back to Kings county. He was then interrogated and at first denied any association with the Nitzberg case. What then occurred was narrated by the Assistant District Attorney of Kings county in November, 1941, when he asked the Court of General Sessions of New York County to show clemency to Stem upon the indictments pending against him in that court.

He (Stern) was permitted to speak to Price and we were later informed that this defendant urged Price in his own interests, and for himself, to tell the absolute truth of what he knew about the Shuman killing, that it would be of aid to the District Attorney of the County of Kings, and of this county, and it was as a result of that talk with Price that Price then gave us what we later found to be a full and complete statement of his participation, and the facts that he knew in this case. Pie later testified upon the trial,, and I say to this court without fear of contradiction, and the record will bear me out, were it not for the testimony of David Price in the Nitzberg case we would never have secured a conviction.”

After Price had testified against Nitzberg at the second trial the District Attorney of Kings county submitted an affidavit in the Court of General Sessions asking that clemency be shown to Price also upon his indictments for grand larceny as a co-defendant with Stern for whom clemency had been asked earlier. We quote from that affidavit:

“ There was pending in this office an indictment against Irving Nitzberg alias ‘ Knadles/ alias Kay/ charging the said defendant with the crime of murder in the first degree for the killing of Albert Schulman on January 9, 1939. At or about that time an order was made by Honorable John J. Fitzgerald, County Judge of this County, directing your deponent to proceed with the trial of the Nitzberg indictment on or before May 13, 1941, otherwise the said indictment was to be dismissed for lack of prosecution, the indictment against said defendant having been found by a grand jury of this County on July 3, 1940.
“ At that time the principal evidence in our possession came from accomplices, and the necessary corroboration by way of independent proof was lacking. This situation existed until shortly before the date set for trial, to wit, May 12, 1941. It was during this period that information came to me that one David Price, the above named defendant, if produced as a witness on behalf of the People, could testify to facts which would definitely corroborate the testimony of the accomplices, and would be sufficient as a matter of law and fact to convict the said Nitzberg for the murder with which he was charged.
“ A few days before the trial date detectives of my office located the said David Price in the town of Dunnellen, New Jersey, where he was residing with his wife. Price voluntarily came into this county and told me and my assistants who were in charge of the Nitzberg prosecution, everything he knew concerning Nitzberg’s participation in the murder of Albert Schulman. He personally was in no way involved in the said crime, but the information which he gave me, and the facts to which he later testified on the trial, supplied the necessary corroboration which I needed to proceed with the trial of the said Nitzberg. Principally, a result of his testimony, the said Nitzberg was tried in the month of May, 1941, before the Honorable Peter J. Brancato, and convicted of the crime of murder in the first degree. This conviction was subsequently reversed by the Court of Appeals, and the case sent back for a new trial. Nitzberg was re-tried in March, 1942, and again convicted of murder in the first degree. The Appeal in that case is now pending.
Price testified upon the second trial substantially the same as on the first trial. I am firmly of the opinion that without the testimony* of David Price there could not have been a conviction in the Nitzberg case. The conviction of said defendant was one of a group of murder cases prosecuted in this office.
When Price was brought to this county he was under indictment in New York County of the crime of robbery, and I immediately communicated with the then District Attorney Hon. Thomas E. Dewey, that Price was in my custody. I informed him of the information which Price gave me and informed him that Price would testify as a witness in the Nitzberg case. It was agreed between us that if Price did so testify, and aided me in the Nitzberg trial, that District Attorney Dewey would recommend to this court that Price be permitted to plead guilty to a misdemeanor to cover any indictments pending against him in New York County.
“ For all of the above reasons I respectfully request the Court to accept the recommendation of the District Attorney of New York County that the above named defendant be permitted to plead guilty to a misdemeanor to cover the pending indictments against him.”

It thus appears beyond possibility of dispute that the defendant was held for ten months upon an indictment found by the grand jury upon evidence which, as matter of law, would not warrant submission of guilt to a trial jury; that while the defendant was so held the District Attorney sought the evidence required by law to warrant such submission; that when the time was near at which the District Attorney was required to begin the trial, two confirmed criminals then actually in prison and a third “ thrice-convicted criminal ” who was a fugitive from justice, offered to supply the necessary corroborative evidence; that all three when first interviewed by the District Attorney or his assistants at first failed or refused to admit that they could, if they chose, give testimony which would be helpful; that all three did thereafter give testimony and that the District Attorney then obtained clemency for all three in recognition of the belated assistance they had given. We do not doubt that the District Attorney asked the grand jury to indict the defendant upon the testimony of the three self-confessed accomplices only because he himself was convinced that their story was credible, nor do we doubt that he asked the trial jury to find the defendant guilty only because he was himself convinced of the defendant’s guilt and did not believe that the corroborative testimony, though coming from witnesses who are confirmed criminals, was fabricated by them. We may well doubt, however, whether the testimony of these witnesses would have been offered to the District Attorney or would have been discovered by him if these professional criminals had not known that the defendant was held under an indictment which the District Attorney was reluctant to bring to trial and had not known, too, that testimony which would result in Nitzberg’s conviction would bring to them rich reward. The defendant has been held and tried upon an indictment found without sufficient evidence and at the trial the defendant has been convicted upon testimony which is open to grave suspicion, because it is infected by the taint of the indictment. A conviction resting upon such a foundation should not stand. We repeat what we have so often said, an accused may not be punished by imprisonment or death until he has been proven guilty in accordance with law.

The judgment of conviction should be reversed and the indictment dismissed.

Conway, J.

(dissenting). The defendant has been convicted of murder in the first degree by two separate juries after protracted trials. Judgment was first pronounced upon him in June, 1941. He had then been awaiting trial upon his indictment from July, 1940. During that period he made no motion to inspect the minutes of the grand jury which indicted him and no motion to dismiss the indictment upon the ground that it had been found upon insufficient evidence. Under those circumstances he waived such objection. (People v. Willett, 213 N. Y. 368; People v. Giordano, 114 Misc. 62; 231 N. Y. 633.)

In December, 1941, we reversed bis first conviction not upon the ground that it was contrary to the weight of the evidence but by reason of error in the charge of the court. We pointed out that the statutory requirement of corroboration of the witness Abraham Reles had been met. (People v. Nitzberg, 287 N. Y. 183, 193.)

Concededly there had not been corroboration of the witness Reles before the grand jury. Concededly the corroboration required by the statute was obtained subsequent to the indictment. During the month preceding our reversal, the accomplice Reles died. Code of Criminal Procedure, section 8, permits the reading of the testimony of a deceased witness on a new trial of a defendant following a reversal of a conviction, only when the new trial is had upon the same indictment. :

During the ten months during which the defendant was awaiting trial prior to his first conviction, had he moved for a dismissal of the indictment upon the ground that it was based upon insufficient evidence, that motion would have been granted and if the District Attorney had no proof corroborative of the accomplice Reles, that would have been an end to the case unless and until such corroboration was obtained. If at the time of such dismissal the District Attorney had in his possession the necessary corroborative proof, he could have presented such proof to another grand jury and, no doubt, obtained from it a new indictment differing only in that it would be typed upon a different piece of paper. Reles would then have been alive and could have testified on the trial and,; if there had been a reversal of a conviction then obtained, his; testimony could have been read on a subsequent trial or trials after his death.

Following swift upon the reversal of his conviction, the defendant, realizing that if he could obtain a dismissal of the indictment the testimony of the deceased accomplice Peles could not be used against him and that he would thus escape punishment, moved for a dismissal of the indictment upon the ground that it was based upon insufficient evidence. That motion was denied and upon his trial before a second jury he was again convicted of the crime of murder in the first degree.

The majority of this court has decided that that motion should have been granted and that the indictment should now be dismissed. We dissent from that decision upon the ground that the defendant, after full opportunity to move and after representation by able counsel, waived his right to a dismissal of the indictment by failing to move with reference to it prior to going to trial. We refrain from pointing out the exceptional sordidness of the crime of which two juries have found the defendant guilty. The indictment is being dismissed solely as a matter of law.

It is conceded by the majority that the defendant waived his right to a dismissal of the indictment by going to trial without moving therefor and that, if the first conviction had not been reversed by us, it would have been a legal one. (People v. Giordano, supra.)

Section 544 of the Code of Criminal Procedure reads as follows: “ When a new trial is ordered, it shall proceed in all respects as if no trial had been had.” Because of the wording of that statute this court is about to decide that the waiver of the defendant is nullified by our reversal and that he now has another opportunity to move for a dismissal of the indictment regardless of whether or not the party plaintiff, the People of the State of New York, has suffered by reason of the death of Peles. The parties are not in the same position as before. (Cf. Code Cr. Pro., § 464.) They never can be when one of the eventualities provided for in Code of Criminal Procedure, section 8, occurs, as it has occurred here. Under those circumstances a new trial cannot be had as though there had never been a previous trial and all the testimony cannot be produced anew. The Legislature appreciated that when it enacted section 8 of the Code of Criminal Procedure. We think that if a defendant sees fit to waive his right to move with respect to an indictment prior to Ms trial thereon, that that waiver is final. It is but just and certainly involves neither oppression nor persecution to require that a defendant make up his mind whether he shall or shall not waive Ms right to move with reference to an indictment prior to the time when he first goes to trial rather than to permit him to gamble upon a possible reversal of a conviction following the death, insamty or departure from the State of a witness against Mm.

I The judgment should be affirmed.

Lotjghran, Rippey and Desmond, JJ., concur with Lehman, Ch. J., Conway, J., dissents in opinion in wMch Finch and Lewis, JJ., concur.

Judgment of conviction reversed, etc.


text:
    Henry G. Mason et al., Appellants and Respondents, v. Dorsey Richardson et al., Defendants; Isaac D. Levy, Respondent and Appellant, and Paul W. Kesten et al., Respondents.
    Argued March 12, 1942;
    decided July 29, 1942.

      Bernard Hershkopf, Edioard Menden, Joel Per and Manuel Tancer for plaintiffs, appellants and respondents.

      George Z. Medalie, Godfrey Goldmark, Max Freund and Louis W. Bookheim, Jr., for defendants-respondents and for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    The People of the State of New York, Respondent, v. Abraham Rubin, Appellant. The People of the State of New York, Respondent, v. Max Ritter, Appellant.
    Argued June 3, 1942;
    decided July 29, 1942.

      Maxwell Slade and Samuel Firestone for appellants.

      John J. Bennett, Jr., Attorney General (Benjamin Heffner and M. Perry Dawson of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Claim of Ruth Swanson, Appellant, against Val Line, Inc., et al., Respondents. State Industrial Board, Respondent.
    Submitted June 4, 1942;
    decided July 29, 1942.

      Irvin A. Snyder for appellants.

      Jeremiah F. Connor for respondents.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Jerome A. Newman, Appellant, against Henry K. Smith, as President of Adams Express Company, et al., Respondents.
    Argued June 8, 1942;
    decided July 29, 1942.

      Robert T. Swaine and Roy T. Parker, Jr., for appellant.

      Alfred A. Cook, William M. Parke and Henry Cohen for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loiighran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Elizabeth Roper, as Attorney in Fact of Milard K. Roper, Respondent, v. Patrick Walsh, as Fire Commissioner and Chief of Fire Department of City of New York, et al., Appellants.
    Argued June 17, 1942;
    decided July 29, 1942.

      William C. Chanler, Corporation Counsel (Jeremiah M. Evarts, Oscar L. Tucker and Abraham Shapiro of counsel), for appellants.

      Malcolm J. Hartsell and Parnell J. T. Callahan for respondent.

      John J. Bennett, Jr., Attorney General (Henry Epstein and John C. Crary, Jr., of counsel), for State of New York, amicus curiæ.

   Upon appeal from order: Appeal dismissed, without costs.

Upon appeal from judgment: Judgment affirmed, with costs.

(See Matter of Williams v. Walsh, 289 N. Y. 1.) No opinion. (See 289 N. Y. 647.)

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Max S. Yuni, Appellant, v. Max Herscovitz, Respondent.
    Argued June 17, 1942;
    decided July 29, 1942.

      Irwin Isaacs for appellant.

      Jacob R. Freund for respondent.
   Judgment affirmed, with costs; no opinion. (See 289 N. Y. 757.)

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    William A. Beer, Appellant and Respondent, v. S. Ashley Chanler et al., Respondents and Appellants, Impleaded with Another.
    Argued June 18, 1942;
    decided July 29, 1942.

      Alvin C. Cass for plaintiff, appellant and respondent.

      Samuel Rubin for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion. (See 289 N. Y. 652.)

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Margaret S. Herbermann et al., as Executors of Henry Herbermann, Deceased, Appellants, v. New York Shipbuilding Corporation et al., Respondents.
    Argued April 27, 1942;
    decided July 29, 1942.

      John S. Sheppard, Henry G. Seipp and David J. Rosen for appellants.

      H. Preston Coursen for New York Shipbuilding Corporation, respondent.

      George W. Whiteside and Charles Pickett for William H. Coverdale et al., respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Lehman, Ch. J.


text:
    Philip Grasso, as Administrator of the Estate of John Grasso, Deceased, Appellant, v. The State of New York, Respondent.
    (Claim No. 25615.)
    Argued June 2, 1942;
    decided July 29, 1942.

      Samuel L. Greenberg for appellant.

      John J. Bennett, Jr., Attorney General (James H. Glavin, Jr., of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Lehman, Ch. J.


text:
    In the Matter of Spencer M. Dawkins, Appellant. New York County Lawyers Association, Respondent.
    Argued June 3, 1942;
    decided July 29, 1942.

      Henry A. Uterhart, Alfred Schaffer and Bernhard Steinman for appellant.

      Edwin M. Otterbourg and George R. Adams for New York County Lawyers’ Association, respondent.

      William C. Chanler, Corporation Counsel of City of New York (Paxton Blair and Alfred D. Jahr of counsel), amicus curiæ.

   Order affirmed, with costs; no opinion.

Concur: Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Lehman, Ch. J.


text:
    In the Matter of the Estate of William E. Benjamin, Deceased. State of Connecticut et al., Appellants; New York State Tax Commission, Respondent.
    Argued June 8, 1942;
    decided July 29, 1942.

      Francis A. Pallotti, Attorney General of State of Connecticut (T. Ludlow Chrystie, Charles J. McLaughlin, Frederic W. Dauch and Thomas Witter Chrystie of counsel), for State of Connecticut, appellant.

      John G. Jackson and George B. Brooks for Henry R. Benjamin et al., as executors, appellants.'

      Robert C. Fulton, Jr., special guardian for infant remaindermen, appellant.

      Edward G. Griffin and Bernard A. Culloton for respondent.
   Order affirmed, with costs to all parties appearing separately and filing briefs, payable out of the estate. There is evidence to support the finding “ that Mr. Benjamin never abandoned his domicile in this State.” We pass on no other question. No opinion.

Concur: Lehman, Ch. J., Lottghban, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Sadie Goldman, Appellant, v. Anna Sontag et al., Respondents.
    Argued June 16, 1942;
    decided July 29, 1942.

      Benjamin M. Goldstein, Ellsworth Baker and Carl P. Goldstein for appellant.

      John D. Lyons and Samuel Mezansky for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Blue Bird, Inc., Perfumers, Appellant, v. Consolidated Royal Chemical Corporation et al., Respondents.
    Submitted June 17, 1942;
    decided July 29, 1942.

      I. Maurice Wormser, Lawrence Isaacs and Charles Gold for appellant.

      George Morton Levy and Irving Goldberg for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Multiple Trading Corporation, Appellant, v. Demola Realty Corporation et al., Respondents, Impleaded with Others.
    Argued June 18, 1942;
    decided July 29, 1942.

      Benjamin Levitas for appellant.

      Otho S. Bowling and Ernest M. Garle for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rifpey, Lewis, Conway and Desmond, JJ.


text:
    Harry Reiser, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Argued June 18, 1942;
    decided July 29, 1942.

      John A. Meyer for appellant.

      Theodore B. Richter and Edward Weinfeld for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Sylvia Rush, Appellant, v. Curtiss-Wright Export Corporation, Respondent.
    Submitted June 1, 1942;
    decided July 29, 1942.

      Earl J. Garey and Herman H. Levy for appellant.

      Kenneth M. Spence and Stewart W. Bowers for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Max M. Hirson, as Receiver of Tobacco Products Corporation of Delaware, Appellant, v. United Stores Corporation et al., Respondents, Impleaded with Others.
    Argued June 3, 1942;
    decided July 29, 1942.

      Meyer Kraushaar, Milton C. Weisman and Arthur Sheinberg for appellant.

      William Piel, Jr., Inzer B. Wyatt and Roy H. Steyer for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Claims of Joseph T. Geoghegan and Jonas Tenenbaum. Frieda Miller, as Industrial Commissioner of the State of New York, Appellant; Electrolux Corporation, Respondent.
    Argued June 8, 1942;
    decided July 29, 1942.

      John J. Bennett, Jr., Attorney General (Henry Epstein, W. Gerald Ryan and Francis R. Curran of counsel), for appellant.

      Harold L. Smith, William K. Dupre, Richard W. Hogue, Jr., and A. Ross Jones for respondent.
   Orders of Appellate Division reversed and decision of the Unemployment Insurance Appeal Board confirmed, without costs. No opinion. (See Matter of Electrolux Corp., 288 N. Y. 440.)

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Claim of Stephen Nowicki. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant; Electrolux Corporation, Respondent.
    Argued June 8, 1942;
    decided July 29, 1942.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, W. Gerard Ryan and Francis R. Curran of counsel), for appellant.

      Harold L. Smith, William K. Dupre, Richard W. Hogue, Jr., and A. Ross Jones for respondent.
   Order of Appellate Division reversed and decision of the Unemployment Insurance Appeal Board confirmed, without costs. No opinion. (See Matter of Electrolux Corp., 288 N. Y. 440.)

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Claim of Joseph Riggi. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant; Electrolux Corporation, Respondent.
    Argued June 8, 1942;
    decided July 29, 1942.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, W. Gerard Ryan and Francis R. Curran of counsel), for appellant.

      Harold L. Smith, William K. Dupre, Richard W. Hogue, Jr., and A. Ross Jones for respondent.
   Order of the Appellate Division reversed and decision of the Unemployment Insurance Appeal Board confirmed, without costs. No opinion. (See Matter of Electrolux Corp., 288 N. Y. 440.)

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    James Vangellow et al., Doing Business under Name of General Store Fixtures Company, Respondents, v. Steve Rutyna, Appellant.
    Submitted June 16, 1942;
    decided July 29, 1942.

      Nathan Relin for appellant.

      Charles E. Callahan for respondents.
   Appeal dismissed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Joseph Wylan, Individually and as Guardian ad Litem of Paul Wylan et al., Infants, Appellants, v. Harry Wender, Individually, Respondent, Impleaded with Others.
    Argued June 16, 1942;
    decided July 29, 1942.

      Harry Wylan and Manuel W. Levine for appellants.

      John R. Vunk and Leo M. Brimmer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Vito Passanante et al., Appellants, v. Rothenberg Cruller Bakery, Inc., Respondent.
    Submitted June 17, 1942;
    decided July 29, 1942.

      Thomas O’Rourke Gallagher for appellants,

      Frederick Mellar for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Miles H. McCormick, Appellant, v. State of New York, Respondent.
    (Claim No. 25,565.)
    Argued June 2, 1942;
    decided July 29, 1942.

      James McCall and Lyman C. Shults for appellant.

      John J. Bennett, Jr., Attorney-General (John A. Lynch and James H. Glavin, Jr., of counsel), for respondent.
   Judgment of Appellate Division reversed and that of Court of Claims affirmed, with costs in this court and in the Appellate Division on the ground that the weight of evidence and the findings of the Court of Claims require the conclusion that the State is liable. No opinion.

Concur: Lottghran, Finch, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Lehman, Ch. J.


text:
    Household Finance Corporation, Respondent, v. Jack Goldring et al., Appellants.
    Argued June 5, 1942;
    decided July 29, 1942.

      Archibald Bromsen and Irving S. Bobraw for appellants.

      George Z. Medalie and John C. McDermott for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    The People of the State of New York, Respondent, v. Edward Hicks, Appellant.
    Argued June 10, 1942;
    decided July 29, 1942.

      James F. Ryan, Philip J. Jones and Harry G. Anderson for appellant.

      William O’Dwyer, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


author: Finch, J.

text:
    Hubert T. Delany et al., Appellants, v. Central Valley Golf Club, Inc., Respondent.
    Argued June 15, 1942;
    decided July 29, 1942.

      Charles H. Tuttle, Stoddard B. Colby and David Coral for appellants.

      Alfred J. L’Heureux and Peter X. McManus for respondent.
   Judgment affirmed, with costs on the ground that a question of fact was presented in regard to the reasons for the exclusion. We pass upon no other question. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis and Conway, JJ. Finch, J., dissents in the following opinion in which Desmond, J., concurs.

Finch, J.

(dissenting). The record fails to show any evidence except that leading to the conclusion, as a matter of law, that plaintiffs have been excluded from a public golf course in violation of their rights under the Civil Rights Law (Cons. Laws, ch. 6).

Here defendant has advertised its course as public by signs on its own grounds, to say nothing of the several signs on the public highways near the golf course. When the word public ” is thus used, the phrase “ under club rules ” is not sufficient to change the word “ public ” to “ private.” On the other hand when we turn to the club rules, it is therein specifically provided what the word “ public ” means; for while guests who wish to use the clubhouse must be introduced by members, there is no such provision for those who merely wish to play the course and who are called playing guests.” As to them, the only requirement is the payment of the greens fee.

The words of the Civil Rights Law, a “ place of public accommodation, resort or amusement,” (§ 40), show by their mere statement that they are sufficiently broad to include a public golf course. The fact that the Legislature immediately amended the statute so as specifically to include a public golf course when the earlier language was restricted by judicial decision, shows clearly that the amendment was intended for clarification. In addition there is no canon of construction which is authority for a strict construction of the statute here in question.

It follows that the judgment appealed from should be reversed and a new trial granted.

Judgment affirmed, etc.


text:
    Myrtle A. Segar, as Executrix of and Trustee under the Will of Elzie C. Segar, Deceased, Respondent, v. King Features Syndicate, Inc., Appellant.
    Argued June 17, 1942;
    decided July 29, 1942.

      James Carroll for appellant.

      Jacob L. Holtzmann, David M. Holtzmann, Marvin M. Notkins and Fanny E. Holtzmann for respondent.
   Judgment affirmed, with costs; no opinion. (See 289 N. Y. 643.)

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Sadie Brill et al., as Executrices of Sol Brill, Deceased, Respondents, v. Harry Brandt et al., Appellants.
    Argued June 18, 1942;
    decided July 29, 1942.

      Arthur Sheinberg, Milton C. Weisman and Fred Jacobs for Harry Brandt, appellant.

      Robert Abelow for Sidney Satenstein, appellant.

      Arthur H. Schwartz, Herman Finkelstein and Herbert P. Jacoby for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Robert B. Rothfeld et al., as Committee of Alfred Rothfeld, an Incompetent Person, Appellants, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued June 18, 1942;
    decided July 29, 1942.

      Samuel B. Seidel and Walter Frank for appellants.

      John J. Bennett, Jr., Attorney-General (John C. Crary, Jr., and Wendell P. Brown of counsel), for respondents.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    The People of the State of New York, Respondent, v. Thomas M. Gallagher, Appellant.
    Argued June 4, 1942;
    decided July 29, 1942.

      David F. Price, George W. Martin and Montague Casper for appellant.

      Edward J. Neary, District Attorney (Philip Huntington of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Lewis, Conway and Desmond, JJ. Rippey, J., dissents on the ground that there was error in the charge.