author: Rippey, J.

text:
    John B. Clark, Appellant, v. Phillip B. Nannery et al., Respondents.
    Argued October 21, 1943;
    decided January 20, 1944.

      Edward A. Scott, Jr., and John G. McEachen for appellant.
    I. The uncontroverted and conceded facts establish three sue-cessive false arrests and imprisonments and dismissal of the complaint was improper. (Schultz v. Greemuood Cemetery, 190 N. T. 276; Snead v. Bonnoil, 166 N.- Y. 325; Hoplcins v. Ciarle, 158 N. Y. 299; People v. O’Conner, 257 N. Y. 473; People y. Marendi, 213 N. Y. 600; Livingston v. Livingston, 246 N. Y. 234; People v. Shanley, 40 Hnn 477; Grinnell v. Weston, 95 App. Div. 454; West v. Cabell, 153 U. S. 78.) II. The illegality of the arrest under the warrant was not enred by the subsequent charge and conviction for disorderly conduct. (Hendrix v. Manhattan Beach Development Co., 181 App. Div. Ill; Snead v. Bonnoil, 166 N. Y. 325; Eopkinson v. Lehigh Valley B. B. Co., 249 N. Y. 296; Beardsley v. Soper, 184 App. Div. 399.) III. The defendants merely argue, but have wholly failed to allege or prove, that plaintiff was lawfully detained in Bellevue Prison for mental observation pursuant to the provisions of subdivision 2 of section 81 of the Mental Hygiene Law.

      Ignatius M. Wilkinson, Corporation Counsel (Joseph F. Mul-queen, Jr., and Paxton Blair of counsel), for respondents.
    I. The first cause of action alleging false arrest was properly dismissed since there was nothing in the evidence to show that in law defendants Nannery, Halpin, Mullane, Leonhadt, and Griffin made or participated in the making of a false arrest. On the contrary, plaintiff’s own testimony shows that he acted arbitrarily and abusively without lawful justification and was guilty of disorderly conduct, so that his arrest on this ground was not without cause. Furthermore, his conviction in a court of competent jurisdiction and the affirmance thereof established that he was guilty of the charge. (Schindler v. Boyal Ins. Co., 258 N. Y. 310; Schulte v. Greenwood Cemetery, 190 N. Y. 276; Thompson v. Fisk, 50 App. Div. 71.) II. The second cause of action alleging false imprisonment was properly dismissed since the plaintiff was lawfully held for psychiatric examination at Bellevue, having lawfully been sent there on the certification that he was “ psycho ”, and the procedure conformed to the provisions of subdivision 2 of section 81 of the Mental Hygiene Law, the applicable statute. Moreover it was judicially determined by a court of competent jurisdiction by its order dismissing the writ of habeas corpus and remanding plaintiff to the custody of the police, that he was not illegally held. The failure of the plaintiff to appeal from that order renders it a final determination against the right to maintain the present cause of action. (Both v. Buffalo & State Line B. B. Go., 34 N. Y. 548.)
   Rippey, J.

Plaintiff brought this action to recover damages for false arrest and false imprisonment. At the close of the trial upon issues raised by the complaint and answers of the various defendants, a nonsuit was granted and the complaint dismissed. That disposition of the case has been approved by the Appellate Division, on appeal, by a divided vote.

On the afternoon of March 14, 1939, two officers in the Police Department of the City of New York were looking for one Gaffney who was under indictment for the crime of extortion. When they accosted plaintiff on suspicion that he might be the man they desired to apprehend and he refused to disclose his identity, he was taken by those and other officers into custody and forcibly removed in a patrol wagon to a police station where he was booked ” on a disorderly conduct charge. To one Nigra who was later called to the police station from the City Hospital to treat him for lacerations and other physical injuries which he had received during those transactions and who pronounced him “ psycho ”, plaintiff promptly disclosed his identity. Nigra was not produced at the trial and could not be found. There was no evidence that he was a duly licensed physician or a psychiatrist or a duly licensed examiner. Without arraignment before a Magistrate or commitment, plaintiff was then taken by a police officer in the hospital ambulance to the prison ward of Bellevue Hospital where he was detained for a period of six days until discharged from custody of the hospital by the Supreme Court on a writ of habeas corpus. A written report was produced by the director of the hospital that no evidence of psychosis or mental deficiency had been discovered. Plaintiff was then returned by police officers to the station house and detained until arraignment before a Magistrate in night court on the disorderly conduct charge. He was then released by the Magistrate in the custody of his counsel and later tried and convicted on that charge.

At what time during the course of the foregoing proceedings and on what ground or charge the arrest was made, on what ground or under what charge the subsequent detention was imposed, whether such arrest with or without detention was justifiable and what the facts were upon which the defense of probable cause was based, were, upon conflicting evidence and upon evidence upon which reasonable men might draw different inferences, questions for the jury to decide (Burns v. Erben, 40 N. Y. 463, 466; Snead v. Bonnoil, 166 N. Y. 325; McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66). On whatever ground the arrest was made and detention imposed, the burden of establishing probable cause and justification rested on defendants (Burns v. Erben, supra; Schultz v. Greenwood Cemetery, 190 N. Y. 276, 278). If the conduct of defendants toward plaintiff after the arrest was not legally justifiable, the arrest itself was rendered unlawful from the beginning on the theory that the defendants were trespassers ab initio and so continued down to the time when the plaintiff was lawfully held under a warrant of commitment, regardless of whether or not the plaintiff was guilty of any crime ” (Hendrix v. Manhattan Beach Development Co., 181 App. Div. 111, 117; Snead v. Bonnoil, supra). Conviction on the disorderly conduct charge is not effective as a plea in bar (Schindler v. Royal Ins. Co., 258 N. Y. 310, 314).

The foregoing and, perhaps, other questions of fact which we do not pause to develop, on the record here, required consideration by the jury and it was accordingly error for the Trial Judge to take the case from the jury, nonsuit the plaintiff and dismiss the complaint. Whether defendants Mac-Cormick, Scully and Morgan are within the protection of section 81 of the Mental Hygiene Law should be determined upon the facts as they are developed upon the new trial..

The judgments should be reversed and a new trial granted, with costs to the appellant to abide the event.

LoughraN, Lewis and Couway, JJ., concur; Ch. J., dissents and votes to affirm; J., dissents as to the respondents Scully, MacCormick and Morgan and votes to affirm the dismissal as to them on the ground that any acts of those defendants in respect to this plaintiff were in accordance with section 81, subdivision 2, of the Mental Hygiene Law; Thacher, J., taking no part.

Judgments reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Reargued December 7, 1943;
    decided January 20, 1944.

      Henry A. Lowenberg for appellant.
    The judgment of conviction should have been set aside and a new trial ordered in view of the newly discovered evidence.

      Frank 8. Hogan, District Attorney (Bernard L. Alderman and Stanley H. Fuld of counsel), for respondent.
    The allegedly newly discovered evidence — being merely cumulative impeaching testimony — could not have affected the verdict. (People v. Antonio, 265 N. Y. 246; People v. Patrick, 183 N. Y. 52; Mount v. Mitchell, 32 N. Y. 702; People v. Jugigo, 128 N. Y. 589; Matter of Buchanan, 146 1ST. Y. 264; People v. Shilitano, 218 N. Y. 161; People v. Arata, 255 N. Y. 374; People v. Laudiero, 192 N. Y. 304; People v. Priori, 164 N. Y. 459; Greenfield v. People, 85 N. Y. 75; People v. Becker, 215 N. Y. 126; People v. Eng Hing, 212 N. Y. 373; People v. Shea, 16 Mise. 111.)
   Per Curiam.

In People v. Antonio (265 N. Y. 246), we held that new matter cannot be considered on a motion for reargument ” made after affirmance of a judgment of conviction of murder in the first degree. If reargument in such case is granted on some other ground, our practice has been to consider new matter brought out thereafter and before the rehearing of the appeal. (See People v. Puller, 291 N. Y. 438.) In the present case we granted a motion for reargument made solely on the ground of evidence alleged to have been discovered after we had affirmed the judgment of conviction (291 Y. 702). All the judges of the court agree that the Antonio case (supra) was thereby overruled.

The newly evidence has been considered. The court, by a majority vote, has concluded that the motion for a new trial upon such evidence has been properly denied, and that the judgment of conviction should be affirmed.

The dissenting Judges believe that the ease is too close to permit of the view that the new matter could not change the result and accordingly vote for a new trial.

The Chief Judge and Judge Rippey also find further support in the new matter for their opinion that this judgment is against the weight of the evidence.

All concur in above Per Curium opinion.

The judgment of conviction should be affirmed.

Judgment of conviction affirmed.


text:
    Argued January 13, 1944;
    decided January 20, 1944.

      A. David Benjamin and Irving Ginsberg for Thomas F. Cos-grove, appellant and respondent.
    I. The machine vote in the Eighteenth • Election District of the Second Assembly District should be read as giving Cosgrove 8 votes on line A.. (Matter of Creedon, 264 N. Y. 40; Matter of Pettit v. Dietter, 246 App. Div. 895, 270 N. Y. 667.) II. The failure of the domestic war ballot to have a separate line for Cosgrove 'as candidate of the Republican Party and a separate line for him as candidate of the American Labor Party, was contrary to the provisions of section 306 of the Election Law and a material defect. (Matter of Burr v. Voorhis, 229 N. Y. 382.) III. The failure of the domestic war ballot to have a separate line for Cosgrove as nominee of the American Labor Party was nnconstitntional and there was no waiver by the candidate of his right to question the form of the ballot. (.Matter of Hopper v. Britt, 203 N. Y. 144; Matter of Gilfillan v. Beyer, 124 Mise. 628, 212 App. Div. 855, 240 N. Y. 579; Matter of Crane v. Voorhis, 257 N. Y. 298; People esc rel. Hotchkiss v. Smith, 206 N. Y. 231; People ex rel. Burke v. Terry, 203 N. Y. 293; Matter of Callahan, 200 N. Y. 59; Matter of Callaghan v. Voorhis, 252 N. Y. 14; Matter of Aurelio [Cohen], 291N. Y. 176.) IV. All domestic war ballots which are marked with an X outside of the voting square are invalid.

      Philip Jones for Ward H. Cann, as Chairman of the American Labor Party County Committee of Richmond County, and others, interveners, appellants and respondents.
    The domestic war ballot is defective in form and violates the Constitution of the State of New York. (Matter of Callaghan v. Voorhis, 252 N. Y. 14; Matter of Hopper v. Britt, 203 N. Y. 144; Matter of Crane v. Voorhis, 257 N. Y. 298; Matter of Gilfillan v. Beyer, 124 Mise. 268, 240 N. Y. 579; Matter of LaGuardia v. Cohen, 149 Mise. 110.)

      Irving Rivkin and Jerome Otis Ellis for Thomas J. Walsh, respondent and appellant.
    I. The eight votes recorded on line 1 on the back of the voting machine in the Eighteenth Election District of the Second Assembly District are blank votes, should not be counted for any candidate, and have been properly so held by the Appellate Division. (Matter of Creedon, 264 N. Y. 40.) II. The most liberal construction should be given under the State Constitution and the Election Law, to the intent shown in the soldier ballots, whether the ballots of said soldiers were fro'm soldiers in domestic or foreign service. No distinction can be made as between soldiers in domestic service or soldiers in foreign service, in giving effect to such liberal construction and interpretation. All ballots by soldiers marked with an X after the name of the candidate they intend to vote for should be given full effect. (Matter of Fiske, 181 App. Div. 706.) III. The form of the domestic war ballot is constitutional and does not discriminate between the candidates. (Shiels v. Flynn, 275 N. Y. 446; Walsh v. Boyle, 166 N. Y. S. 681.)

      Ignatius M. Wilkinson, Corporation Counsel (Thomas W. A. Crowe of counsel), for S. Howard Cohen et al., as Commissioners of Elections of the City of New York, respondents.
   Per Curiam.

In accordance with the letter and spirit of article XII of the Election Law we have given effect to the apparent intent of the voters in spite of defects in the ballots except where the statute in plain language otherwise provides. Section 306, subdivision 3, provides that a war voter in domestic service “ shall mark a war ballot # * * by making a cross X mark in the square to the right of an emblem opposite the name of the candidate for whom he desires to vote. * ⅝ ⅜ He shall make no mark or writing whatsoever upon the ballot, except as above prescribed.” Three voters have placed cross X marks outside of the square and to the right of the candidate’s name. By no liberal construction of the statute can such votes be counted. See, also, section 308, subdivision 5, which defines the rules for counting of ballots of war voters in domestic service. The question would be different if the voters had been in the foreign service. See section 314, which regulates the method of voting by war voters in foreign service but omits the words contained in section 306 which we have italicised, and section 319, which provides rules specifically made applicable to the canvass of war ballots of voters in foreign service.

The order should be affirmed, without costs.

LehmaN, Ch. J., Bippey, Lewis, CoNWay, Des-moND and Thacher, JJ., concur.

Order affirmed.


author: Per Cgriam.

text:
    Argued January 13, 1944;
    decided January 20, 1944.
    A. David Benjamin and Irving Ginsberg for Thomas F. Cosgrove, appellant.
    The foreign war ballot removed from an unsealed envelope in the Forty-first Election District of the Second Assembly District and counted for Walsh is void. The protested overseas war ballot removed by the court from an unsealed envelope in the Twenty-first Election District of the Second Assembly District and counted for Walsh is void.

      Irving BivTcin and Jerome Otis Ellis for Thomas J. Walsh, respondent.
    The Bilyek and O’Keefe ballots, canvassed as foreign war ballots on December 15,1943, were properly counted as valid votes for Walsh. In one ease the protest was too late and in the other the envelope was substantially sealed.

      Ignatius M. Wilkinson, Corporation Counsel (Thomas W. A. Crowe of counsel), for S. Howard Cohén et ah, as Commissioners of Elections of the City of New York, respondents.
   Per Cgriam.

The indorsements upon two envelopes of war voters in foreign service were not executed as required by the statute and the votes should have been rejected if objection had been made upon the original canvass (See Election Law, § 319). In the absence of objection the envelopes were opened as provided in the statute and the ballots deposited in the ballot box. We agree with the courts below that the ballots so deposited without objection must be .counted., Protest thereafter will not avail even where it may he possible to determine for which candidate such ballot was cast.

The order should be affirmed, without costs.

LehmaN, Ch. J., LoughraN, Rippey, Lewis, CoNWay, Des-moNd aiid Thaoher, JJ., concur.

Order affirmed.


author:
      Per Curiam.
     Bippey JJ.

text:
    In the Matter of William J. Shea, Appellant, against Parton Swift, a Justice of the Supreme Court, et al., Respondents.
    Argued January 27, 1944;
    decided January 27, 1944.

      Daniel E. Prior and Reuben E. Kohn for appellant.
    I. For the purposes of this appeal the statements of fact in the petition must he assumed to he true. II. The court is acting in excess of jurisdiction. (Hildreth v. City of Troy, 101 N. Y. 234; People v. McQuade, 110 N. Y. 284; Matter of Pye, 21 App. Div. 266.) III. The facts stated in the petition showing a discharge of a prospective juror without challenge show a practice of the court in excess of jurisdiction, not only under section 239, hut also under section 242 of the Code of Criminal Procedure. These two sections, with sections 240 and 241, read together contain the only methods known to the law of excusing either absolutely or limitedly prospective grand jurors from service. They are exclusive and the Court is without power to adopt any other mode. (People v. Hooghkerk, 96 N. Y. 149.) IV. If the court allowed a challenge for any of the causes set forth in subdivisions four, five or six of section 239, the court was without power to discharge absolutely the grand juror. He was still a qualified grand juror competent to take part in the consideration of every case except that case in which the court found the provisions of said subdivisions of section 239 applied to him. (Matter of Culver Contracting. Corp. v. Humphrey, 268 N. Y. 26; Windsor v. McVeigh, 93 IT. S. 274; Hovey v. Elliott, 145 N. Y. 126.) V. The appellant has no adequate remedy except a restraining order under article 78 of the Civil Practice Act. (Matter of Baltimore Mail S. 8. Co. v. Fawcett, 269 N. Y. 379; People ex rel. Hummel v. Trial Term, 184 N. Y. 30; People v. Borgstrom, 178 N. Y. 254; People v. Glen, 173 N. Y. 395.)

      Nathaniel L. Goldstein, Attorney-General (Ernest B. Morris, George P. Monaghan, Harris B. Steinberg and Herbert Stern of counsel), respondent.
    I. The rulings of the Justice presiding at the Extraordinary Term, in sustaining the People’s challenges, and in other respects, were proper. (People v. McGone-gal, 136 N. Y. 62; Butler v. G. F., S. H. & F. E. S. B. B. Co., 121 N. Y. 112; United States v. Jones, 69 P. 973.) II. If the court,' in the exercise of sound discretion, is satisfied that a prospective grand juror cannot act impartially and without prejudice toward the People- or toward the prosecutor, such person must be excluded from the entire proceedings. III. The use by the Deputy Attorney-General of the “ lists ” of names distributed among the prospective grand jurors, that the venireman could check names of the persons with whom he was acquainted, was proper. (Goakes v. City of Oneida, 180 App. Div. 118.) IV. Prohibition will not lie in the present case, since the court acted entirely within its jurisdiction. (People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; Zinn v. District Court of Barnes County, 17 N. Dak. 128; People v. District Court, 29 Colo. 83; Matter of Ferry Co., 104 IT. S. 519.)
   Per Curiam.

In this proceeding for an order of prohibition,' we may not pass npon the question whether in every instance the court correctly construed the procedural provisions of the statutes or ruled correctly upon objections or challenges. A majority of the court agree that the court did not act in excess of its jurisdiction.

The majority agree, too, that the word “ case ” as used in subdivision 6 of- section 239 of the Code of Criminal Procedure embraces an investigation like that here in question. Where challenges by the People of individual jurors for bias under subdivision 6 of section 239 are sustained the challenged jurors cannot take part in the investigation ordered by the G-overnor.

The order should be affirmed.

Bippey JJ.

(dissenting). On the petition here presented which, for the purpose of this proceeding we must accept as true, it is clear- that the court summarily discharged grand jurors without challenge, for any of the causes set forth in the Code of Criminal Procedure, section 239, or without trial thereof. This was in violation of the applicable sections of the Code of Criminal Procedure.

Ch. J., LoughraN, Lewis, DesjvioNd and Thacher, JJ., concur in Per Curiam opinion; Bippey and CoNWay. JJ.. dissent in memorandum.

Order affirmed.


author: Lehman, Ch. J.

text:
    In the Matter of Westchester County Society for the Prevention of Cruelty to Animals, Inc., Appellant, against J. William Mengel et al., Constituting the Zoning Board of Appeals of the Town of Yorktown, Westchester County, Respondents.
    Argued January 3, 1944;
    decided February 24, 1944.

      Joseph Reeback for appellant.
    I. The undisputed evidence establishes that the appellant is a philanthropic and eleemosynary institution and that its proposed use of its property was philanthropic and eleemosynary in character. (Cromwell v. American Bible Society, 202 App. Div. 625.) II. The appellant, as a philanthropic and eleemosynary institution, has the right, under the zoning ordinance, to occupy its property for its philanthropic and eleemosynary purposes. (Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339; People ex rel. Orten-berg v. Bales, 224 App. Div. 87, 250 N. Y. 598; Matter of Multiplex Garages, Inc. v. Walsh, 213 App. Div. 155, 241 N. Y. 527; Strauch v. Toivn of Oyster Bay, 263 App. Div. 833; Delaware & Hudson Co. v. Utica, C. S B. B. B. Co., 174 Mise. 403, 259 App. Div. 969; City of New York v. Fredericks, 206 N. Y. 618; People v. Yandewater, 250 N. Y. 83.)

      Chester A. Slocum, James D. Hopkins and Louis Wolsky for respondents.
    I. The provisions of the Zoning Ordinance do not permit the use of the premises for the housing of dogs and other kennel purposes as contemplated by the appellant. (.Duryee v. Mayor, 96 N. Y. 477; Kennahan v. City of New York, 162 App. Div. 364; Matter of Assignment of Holbrook, 99 N. Y. 539; People ex rel. Urban Water Supply Co. v. Connolly, 164 App. Div. 163, 213 N. Y. 706; Flynn v. Prudential Ins. Co. of 207 N. Y. 315; Hayden v. Pierce, 144 N. Y. 512; County of Herkimer v. Village of Herkimer, 251 App. Div. 126; St. Luke’s Hospital v. Godet, 171 Mise. 7; People v. Sharp, 107 N. Y. 427; Stradar v. Stern Brothers, 184 App. Div. 700;
      Blaschko v. Wurster, 156 N. Y. 437; City of Yonkers v. Boro-wits, 222 App. Div. 297.) II. The determination of the Zoning Board of Appeals upon the question of fact of whether the appellant is an eleemosynary institution within the provisions of the ordinance, or the contemplated use of the premises is an eleemosynary use within the intent of the provisions of the Zoning Ordinance, should not he disturbed. (People ex rel. Budson-Harlem Co. v. Walker, 282 N. Y. 400; Matter of Cooper-smith v. Murdock, 262 App. Div. 1032; Matter of Gillespie, Inc. v. Olena, 258 N. Y. 535; Matter of Revorg Realty Co., Inc. v. Walsh, 225 App. Div. 774.) III. In the interpretation or construction of a statute or an ordinance, the intention of its authors should be ascertained. Such a rule cannot disregard the manifest intention of the legislators so as to nullify or override the main purpose and object of the act, or permit an interpretation that leads to an absurdity. (Spencer v. Myers, 150 N. Y. 269 ; Jamison v. Encarnación, 281 U. S. 635.; Wynehamer v. People, 13 N. Y. 378; People v. Ahearn, 196 N. Y. 221; Fisher v. N. Y. C. & B. R. R. R. Co., 46 N. Y. 644; Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314; People ex rel. Cohen v. Butler, 125 App. Div. 384; People ex rel. Cumisky v. Wurster, 14 App. Div. 556.) IV. The provisions of the ordinance are to be given a liberal construction for the purpose of effectuating the objects contemplated. The admonition in statutes or ordinances that they shall be liberally construed to effect the intent of their framers should be followed by the courts, and such construction given to their provisions. (Eagle-Picher Lead Co. v. Mansfield Paint Co., Inc., 203 App. Div. 9; People v. Reilly, 255 App. Div. 109, 280 N. Y. 509; New York County Nat. Bank v. Wood, 169 App. Div. 817, 222 N. Y. 662.)
   Lehman, Ch. J.

The petitioner appellant is a non-profit membership organization incorporated by statute (L. 1883, ch. 91) as a society for “ the prevention of cruelty to animals ”, with power, within the territory in which it may lawfully conduct its activities, “ to enforce by any and all lawful means all acts of the legislature of this state for the prevention of such cruelty to animals, and the punishment of any and all violations of such statutes ”. In October, 1941, it purchased a tract of land, with a small dwelling, a garage and a barn upon it, in the Town of in Westchester County. It built an extension to the barn in accordance with a building permit issued to it and then applied to the Building Inspector of the Town for a certificate permitting the use and occupancy of the barn “for housing dogs and other animals in connection with the operations of our Society.” The application was rejected by the Building Inspector and his determination was affirmed by the Zoning Board of Appeals of the Town on the ground that the premises owned by the appellant are within a “ Residence District ”, and, under the provisions of the Zoning Ordinance of the Town, no building may be erected or used within such a district for the purpose for which the appellant seeks a certificate of occupancy.

The Zoning. Ordinance of the Town, in effect at the time the Society purchased the property and made the alteration to the barn, provided for the division of the Town into districts and defines the purposes for which buildings and structures in each district might be erected or used. The ordinance provides that in a residence district no building shall be erected or for any purpose except the purposes there enumerated. ConcedecIIy none of the enumerated purposes includes the use for which a certificate was refused unless paragraph (1) of subdivision (A) of section 1, of article IV, Philanthropic or eleemosynary use or institution other than a camp, sanatorium, hospital, correctional institution or institution for the insane ”, sanctions such use.

Under the provisions of section 117-e of the Code of Criminal Procedure any agent of the appellant Society is empowered to take possession of “ any lost, strayed, homeless or abandoned animal found in any street, road or other public place ”, and also to take possession of “ any animal in or upon any premises other than a street, road or other public place, which for more than twelve successive hours has been confined or kept in a crowded or unhealthy condition or in unhealthful or unsanitary surroundings or not properly cared for or without necessary sustenance, food or drink.”

The appellant Society has entered into contracts with municipalities in Westchester County pursuant to the provisions of section 120 and 120-a of article 7 of the Agriculture and Markets Law “ for the seizure and impounding of all unlicensed or untagged dogs, and for the maintenance of a shelter or pound for unlicensed or untagged dogs, and for lost, strayed or homeless dogs, and for the destruction or other disposition of seized dogs not redeemed ” as provided by law. It. intends, if permitted, to use its property in a residence district of the Town of Yorktown shelter or pound ” for such dogs as well as a shelter for other animals which, may come into its possession. It receives compensation for the services rendered under its contracts with municipalities, but such compensation is insufficient to “ pay for the expenses necessarily incurred in maintaining and operating all of its aforesaid functions.” Its remaining income is obtained from contributions and from donations made by its members and others.

The problem presented upon this appeal is whether the use of a building as a shelter for animals or as a dog pound in which dogs may be cared for and at times destroyed, constitutes a “ philanthropic or eleemosynary use or institution ” within the meaning of the Zoning Ordinance. The terms philanthropic ” and “ eleemosynary ” are not technical words of art or words which have been defined by statute or which have acquired a rigid meaning by judicial construction. They describe a field without established land marks. Often, perhaps ordinarily, these words denote a purpose to promote the welfare of mankind by works of charity. Sometimes they are used in broader sense to denote an unselfish purpose to advance the common good in any form or manner. Such words reflect the context in which they are used and change in color and in scope accordingly.

Here these words are used together with limitations or exceptions which are apposite only to uses and institutions intended to promote the welfare of human beings. . The functions of law enforcement and of providing, under a contract with municipalities, a place where unlicensed or stray dogs may be destroyed may tend in a sense to promote the public welfare, but the occupation of a building for that purpose even by a non-profit membership corporation cannot be considere.d a “ philanthropic or eleemosynary use ” unless we extend the meaning of these words beyond their permissible limits when these words are read in their context.

The purpose of the zoning' ordinance is stated in its preamble. It recites, among other things, that in order “ to promote the public health, safety, morals and general welfare, with reasonable consideration among other things, to the most desirable nse for which the land of each district may be adapted, the peculiar suitability for the particular use in each district, the conservation of property values and the direction of building development in accordance with a well considered master plan of the Town; # * * and in order ⅞ ⅞ * to encourage the building of homes and residences and other suitable -and necessary structures within the Town of Yorktown ”, the Town Board has found that “ it is necessary that all trades, industries or uses destructive of the peace and security of divelling districts or destructive of property values shall be isolated and segregated ” and to carry out such purposes has adopted the Zoning Ordinance pursuant to the provisions of the Town Law. (L. 1932 ch. 634, as thereafter amended.)

The restrictions on the use of property imposed by the Zoning Ordinance may not be extended by any administrative board or judicial tribunal in order to exclude a use which in its opinion should have been excluded in order to effectuate the purposes set forth in the preamble, nor may we give a strained meaning to the words of the ordinance in order to effectuate its purpose better. Nonetheless, we read this ordinance, as we read all statutes or ordinances, in the light of its expressed or apparent purpose in order to determine the meaning of its language and to avoid thwarting the intent of the legislative body as expressed in that language. So read we conclude that the language of the permissive occupation of a building for a ‘ philanthropic or eleemosynary use or institution other than a camp, sanatorium, hospital, correctional institution or institution for the insane cannot properly be construed as intended to sanction its use as a dog shelter or pound for the care, destruction or other disposition of stray and unlicensed dogs, collected in order to enforce the laws of the State and in the performance of contracts made with municipalities.

The order insofar as appealed from should be affirmed.

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

affirmed.


author: Per Curiam:

text:
    The People of the State of New York ex rel. Charles Moriale, Appellant, against C. Branham, as Superintendent of Woodbourne Institution for Defective Delinquents, Respondent.
    Reargued February 21, 1944;
    decided February 24, 1944.

      Caesar B. F. Barra and Ralph J. Barra for appellant.
    I. The Court of Appeals did not misapprehend the law. (Grimmer y. Tenement House Department of N. Y., 205 N. Y. 549; Matter of Naylor, 284 N. Y. 188.) II. The respondent misapprehended the law on temporary and provisional commitments. (Sporsa v. German Savings Bank, 192 N. Y. 8; Matter of Cornell, 111 Yt. 525.) III. Relator’s writ and petition as finally submitted to the Special Term attacked only the legality of the commitment of the County Court.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and A. W. Feinberg of counsel), for respondent.
    I. The court should follow the administrative interpretation of the statute. (Reports of Attorney-General (1932) 311; People ex rel. Werner v. Prendergast, 206 N. Y. -405; Martorano v. Capital Finance Corp., 289 N. Y. 21; Matter of Doiudell, 169 Mass. 387; Matter of Andrews, 179 Mise. 876; United States v. G. Falh & Brother, 204 U. S. 143; Orinoco Realty Co. v. Bandler, 233 N. Y. 24; Matter of Cole, 235 N Y. 48.) II. A statute which provides for the retention in a hospital of an insane or a mentally defective person whose of imprisonment for crime (especially a crime of violence) has expired, should be construed to allow retention in the first instance of all persons certified bi^ disinterested examiners on a judge’s ex parte order, so long as the constitutional guarantees of hearing and trial are available on habeas corpus. (People v. Henrique's & Co., 267 N. Y. 398; Hovey v. Elliott, 167 U. S. 409; People ex rel. Barone v. Fox, 202 N. Y. 616; People ex rel, Ordivay v. St, Saviour’s Sanitar

      ium, 34 App. Div. 363,- Bumpus v. French, 179 Mass. 131; Matter of Le Bonne, 173 Mass. 550; Sporsa v. German Savings Bank, 192 N. T. 8; People ex rel. Peabody v. Chanter, 133 App. Div. 159,196 N. T. 525.) III. The court, having jurisdiction of the relator in a habeas corpus proceeding, should not discharge him from a mental institution without proof of his normal mentality. (Matter of Blewitt, 131 N. Y. 541; Gridley v. College of St. Francis Xavier, 137 N. Y. 327; Matter of Tracy, 1 Paige 580; Southern Tier MasoniG Belief Assn. v. Lmdenbach, 5 N. Y. S. 901; People v. Burns, 77 Hun 92, 143 N. Y. 665; People ex rel. Morrell v. Bold, 189 N. Y. 546; Sporsa v. German Savings Bank, 192 N. Y. 8; People ex rel. Woodbury v. Hen-drick, 215 N. Y. 339; People ex rel. Romano v. Thayer, 229 App. Div. 687; People ex rel. Gaudino v. Superintendent of Institution for Male Befectivo Belinquents, Napmoch, N. Y., 263 App. Div. 1042; Matter of Shuttleworth, 9 Q. B. 651.)
   Per Curiam:

Upon reargument the court finds no reason to modify its decision that the order of the Appellate Division should be reversed and that of Special Term affirmed. The parties by stipulation defined the questions of law which “ is understood ⅝ * * are involved in this proceeding ”. The question whether a person detained as insane without a valid judicial determination of insanity should be discharged without inquiry whether in fact the person is insane, was not presented at Special Term and may not be considered upon this appeal.

The order- of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.

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

Ordered accordingly.


author: Desmond, J.

text:
    The People of the State of New York ex rel. New York Central Railroad Company, Appellant, against State Tax Commission, Respondent, and City of Albany, Intervener, Respondent.
    Argued January 3, 1944;
    decided March 2, 1944.

      Frank J. Mahony, Frederick L. Wheeler and Clive C. Handy for appellant.
    I. The Appellate Division erred in holding that relator’s privilege of operating its railroad across the Hudson river on bridges of tbe Hudson Eiver Bridge Company at Albany is derived from tbe State and not from tbe bridge company. (People ex rel. Grand Trunk By. Go. v. Gilchrist, 248 N. Y. 97; Silliman v. Hudson River Br. Go., 4 Blatcbf. 74; Nicoll v. N. T. & E. B. B. Co., 12 N. Y. 121; Calvary Presbyterian Church v. Putnam, 249 N. Y. Ill; Hudson River Tel. Co. v. Watervliet Turnpike & By. Co., 135 N. Y. 393; Underhill v. Saratoga W. B. B. Co., 20 Barb. 445; People v. Kerr, 27 N. Y. 188; Lake Superior & Miss. B. B. Co. v. U. S., 93 U. S. 442; People ex rel. Interborough B. T. Co. v. State Tax Commrs., 126 App. Div. 610,195 N. Y. 618; Sands v. Manistee River Imp. Co., 123 U. S. 288; Beading B. B. Co. v. Pennsylvania, 15 Wall. 232.) II. Tbe Appellate Division erred in bolding tbe relator’s petition defective in alleging tbe illegality of tbe Yan Woert Street assessments. (People ex rel. Denney v. Clark, 257 App. Div. 905; People ex rel. N. Y. City Omnibus Corp. v. Miller, 282 N. Y. 5; Matter of Corwin, 135 N. Y. 245; People ex rel. L. I. B. B. Co. v. Tax Comrs., 231 N. Y. 221; People ex rel. N. Y. & R. B. By. Co. v. Tax Comrs., 157 App. Div. 496, 209 N. Y. 599; People ex rel. Empire Mortgage Co. v. Cantor, 190 App. Div. 512; Matter of City of New York v. Sloat, 116 App. Div. 815; People ex rel. Colgate Inn, Inc., v. Assessors, 132 Mise. 506; People ex rel. Erie B. R. Co. v. Tax Comm., 246 N. Y. 322; People ex rel. C. M. Ins. Co. v. Commissioners, 144 N. Y. 483; People ex rel. N. Y. & B. B. By. Co. v. Tax Comrs., 157 App. Div. 496, 209 N. Y. 599; Clark v. Kirby, 243 N. Y. 295.) III. Tbe Appellate Division erred in bolding that tbe Watervliet Avenne and Tivoli Street assessments presented a question of overvaluation rather than an issue of jurisdiction. (Nat. Bank of Chemung v. City of Elmira, 53 N. Y. 49; Elmhurst Fire Co. v. City of New York, 213 N. Y. 87; Matter of Wadhams, 249 App. Div. 271; People ex rel. Bear Mt. H. R. B. Co. v. Dimond, 126 Mise. 239, 222 App. Div. 756; People ex rel. Erie B. B. Co. v. Tax Comm., 246 N. Y. 322; People ex rel. Barron v. Knapp, 208 App. Div. 127, 239 N. Y. 581.)

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Ruth K. Toch of counsel), for State Tax Commission, respondent, and James J. McGuiness, Corporation CotMisel, for City of Albany, intervener, respondent.
    I. Tbe Eailroad crosses tbe Hudson Eiver on tbe bridges of tbe Hudson Eiver Bridge Company by virtue of a grant from tbe State, as the Appellate Division held. (People ex rel. Barron v. Knapp, 208 App. Div. 127, 239 N. Y. 581; District of Columbia v. B. & P. Railroad Co., 114 U. S. 453; County Commissioners v. Chandler, 96 U. S. 205; Washer v. Bullitt County, 110 U. S. 558; Pittsburgh & W. E. P. Ry. v. Point Bridge Co., 165 Penn. 37; Schwab v. Whit-more, Rauber & Vicinus Co., Inc., 245 App. Div. 174; Gibert v. Peteler, 38 N. 165; Union Pacific Co. v. Mason City Co., 199 S. 160; Railway Co. v. Ailing, 99 U. S. 463; McClare v. Mass. Bonding & Ins. Co., 266 N. Y. 371; People ex rel. N. T. C. & H. R. R. R. Co. v. Tax Commrs., 179 App. Div. 489,222 N. Y. 542.) II. The railroad occupies a portion of Watervliet Avenue which part of a public road prior to the construction of the railroad. It is subject to a special franchise assessment for such occupancy. III. Because of the railroad’s failure to raise the issue of the Van Woert Street assessment, that issue is not in the case for determination. (People v. Commissioners of Taxes & Assessments, 26 N. Y. S. 941; People ex rel. Commercial Mut. Ins. Co. v. Coleman, 30 N. Y. S. 379; People ex rel. L. V. R. Co. v. City of Buffalo, 57 Mise. 10; People ex rel. L. I.'R. R. Co. v. Tax Comrs., 231 N. Y. 221; People ex rel. Dexter S. P. & P. Co. v. Hughes, 246 N. Y. 35; Columbia Overseas Corp. v. B. N. Ultra-marino, 198 App. Div. 699; Gerdes v. Reynolds, 281 N. Y. 180; Union Trust Co. v. Main & South Sts. Holding Corp., 245 App. Div. 369; People ex rel. C. M. Ins. Co. v. Commissioners, 144 N. Y. 483.) IV. The special franchises in the main line track and side tracks in Tivoli Street were properly assessed against the railroad. (People ex rel. Barron v. Knapp, 208 App. Div. 127, 239 N. Y. 581; City of New York, v. Bryan, 196 N. Y. 158; Hatfield v. Straus, 189 N. Y. 208.) V. Respondents admit that there included in the assessments of the Tivoli Street occupation, the value of tangible property situated wholly outside the boundaries of the public street. A special franchise includes nothing but what is in the street. (People ex rel. Met. St. Ry. Co. v. Tax Comrs., 174 N. Y. 417.)
   Desmond, J.

In this consolidated proceeding relator reviews, by writs of certiorari, six special franchise assessments made by the State Tax Commission, all pertaining to occupations by relator’s railroad of highways within the city of Albany. The order entered on the referee’s decision vacated all the assessments. The Appellate Division reversed the referee’s order and confirmed all the assessments as made by the Tax Commission. It will be convenient to divide our discussion into four parts.

1. Relator operates its railroad across the Hudson River on two bridges owned by the Hudson River Bridge Company; the tracks, rails, ties and signal equipment on both bridges are owned by relator. The Appellate Division held valid the assessments pertaining to these bridges, on the theory that the railroad’s rights to cross these bridges with its trains came to the railroad by grants from the State of New York, such grants having been made in the form of provisos found in the two statutes under which the Hudson River Bridge Company received from the State its franchises to build the bridges. (See L. 1856, ch. 146, par. 16, and L. 1869, ch. 779.) We are in complete agreement with the comprehensive statement, in Justice ScheNck’s opinion for the majority of the Appellate Division, of the bases for that court’s conclusion that relator is properly taxed as the possessor of special franchises from the State, to run its railroad on the two bridges. Those assessments should be confirmed.

2. As to Yan Woert Street, the State Tax Commission had no jurisdiction to levy special franchise assessments against relator by reason of its occupancy of that crossing. It is not now disputed that relator established as fact its prior occupancy ” of that crossing, so there was no special franchise to be taxed. (People ex rel. N. T. C. R. R. Co. v. Woodbury, 203 N. Y. 167.) So the referee found. The Appellate Division, however, reversed the referee’s annulment of the Yan Woert Street assessments, holding’ that relator, having failed to allege in its petitions for certiorari the particular ground (prior occupancy) of alleged invalidity, was precluded from taking advantage of that ground. We agree that the petitions as to Van Woert Street were defective in that respect but we do not think relator lost any rights thereby, in the circumstances here revealed. Relator’s assertion that the.Yan Woert Street assessments were totally void for lack of jurisdiction could be made at any time. (People ex rel. Erie R. R. Co. v. Tax Comm., 246 N. Y. 322.) Furthermore, the Tax Commission by failing, •within the time limited for such an attack, to point out the infirmity of the petitions, lost its rights thereafter to question their sufficiency. Under the practice as it formerly was, the taxing authority, to raise any question as to the sufficiency of a petition for certiorari, had to make a motion to quasn the writ or to dismiss the petition, before filing a return to the writ. (People ex rel. Gleason v. Purdy, 223 N. Y. 88, 91.) Since 1927, as to special franchise tax assessments, the statute (Tax Law, § 293-a) has permitted objections to the petition to be “ raised for the first time at the hearing ” before the court or referee, but, to avail itself of this privilege, Attorney-General must “ furnish to the petitioner not less than thirty days prior to the hearing a statement of any objections to be raised to the # * * petition on the hearing ”. Since no such preliminary statement was so furnished in this case, the defects in the petition were waived, and the validity of the assessments must be decided, as it was tried, on the merits. The referee’s determination of invalidity of the Yan Woert assessments must, accordingly, be reinstated, and the assessments annulled.

3. As to the Watervliet Avenue assessments, it is now undisputed that, except as to a small triangular piece of land at that crossing, the relator railroad was a prior occupant, so the Watervliet Avenue assessments, which include values not particularized in the lump sum assessments, for that triangular taxable piece, are incorrect and invalid. In the nomenclature of tax litigation, this particular kind of invalidity of an assessment is styled overvaluation ”. Under the statute (Tax Law, § 290) a petitioner, to contest an overvaluation, must specify in his petition ‘ ‘ the extent of such overvaluation The petitions here, in their references to Watervliet Avenue, allege “ illegality ” but do not mention u overvaluation ”, or state the extent thereof. No attack on the pleadings on this ground was made before or at the trial and no proof was offered as to what the true value of this special franchise would be were the non-taxable elements omitted from the calculations. The failure of the Commission to question the insufficiency of the petitions resulted in a waiver of the point. (People ex rel. Gleason v. Purdy, supra.) So much for the petition. As to proof, a relator who claims overvaluation must ordinarily prove the extent thereof, in dollars. Bnt this rule is not always applicable to special franchise assessments. This court pointed out in People ex rel. L. I. R. R. Co. v. Tax 231 N. Y. 221, that it is difficult or impossible, in many instances, for a railroad corporation to particularize as to the extent of the overvaluation which lurks in an excessive lump sum special franchise assessment, and that section 46 of the Tax Law makes the general procedural requirements of article 13 of that law (of which section 290 is a part) applicable to the review of special franchise assessments, “ so far as practicable ” only (see also opinions of the Special Term, 104 Misc. 234, and Appellate Division, 193 App. Div. 297, in that same case). In the case just cited, the difficulty was that the Tax Commission had combined a number of railroad crossings, for assessment purposes, into groups, assigning a certain sum as the value of each group. The courts held that “ this gave the relator no information as to how much was assessed for tangible property and how much for the intangible privilege of using the crossings ” (231 N. Y. at p. 227). The error made as to this relator’s Avenue crossing left relator in a similar predicament since relator obviously had no way of knowing what value the Commission had included in that crossing assessment for the small triangular piece of land- as to which the railroad company was properly assessable for a special franchise. These "Watervliet Avenue assessments must therefore be sent back to the Tax Commission for revision; even though a court might piece together out of the record sufficient data on which to make a correct assessment, the making of such a new assessment is the business of the Commission, not the court. (People ex rel. City of New York v. Keeler, 237 N. Y. 332, 334.)

4. The other disputed assessments are based on the relator’s occupation of Tivoli Street. For some distance the railroad tracks run lengthwise in Tivoli Street. Branching off from those lengthwise main tracks are a number of industrial side tracks running to the street boundaries and thence into the premises of abutting property owners whose use of the railroad’s services is thus facilitated. All of those side tracks, or branch tracks, were constructed, as the courts below found, “ under franchises duly sold by the city of Albany at public auction, from time to time, and purchased by the several industries, desiring side track connections with suck main line track ”. As further found by tke courts below, all these “ franchises ” so purchased from the city of Albany, were, with three exceptions, assigned by the respective purchasers to this relator. The Tivoli Street special franchise assessments here under review include valuations for the three side tracks, or sets of side tracks, not so assigned to relator. This, says relator, makes the Tivoli Street assessments void, since, according to relator, it is not enjoying any special franchise rights as to those three side tracks, the “franchises ” for which still belong to the abutting owners. However, the findings are that relator, not the three “franchise ” purchasers, owns the tracks and other physical property making up the three side tracks. It is relator, and not those three abutting owners, which operates trains over those side tracks. . (See Clarke v. Blackmar, 47 N. Y. 150, bottom of page 156.) Eelator collects the same fees for switching trains or cars onto those three Tivoli Street side tracks as it does on the other Tivoli Street side tracks where the “ franchises ” have been assigned to relator. Eelator repairs and maintains all the side tracks. We conclude that the Tax Commission did not act erroneously in including all these side tracks in the Tivoli Street assessments. However, there is another small error which invalidates those assessments. Included in those assessments, in connection with the side tracks described, are (unspecified) amounts for side trackage not "within the street limits but on the premises of the industrial companies served by the side tracks. This amounts to an over-valuation and over-valuation is not pleaded as to these Tivoli assessments, nor is its extent proven but, under the rules referred to in our discussion above of the Watervliet Avenue assessments, the relator has not by such defective pleading and lack of proof forfeited its right to litigate on the merits the illegality of these assessments, as including nontaxable elements of value. These Tivoli Street assessments, like the Watervliet Avenue assessments, must be sent back to the Tax Commission.

One more contention of the Commission requires discussion. As to the Yan Woert, Watervliet and Tivoli assessments, the Tax Commission points out that, as the Appellate Division found, relator filed with the Commission, pursuant to section 44 of the Tax Law, annual reports in which these three locations were listed as special franchises. The Appellate Division overruled the referee’s refusal to find the facts as to such filings and made a new finding that such reports were so filed, but neither referee nor Appellate Division adopted the conclusion of law, requested by the Tax Commission, that, because of the filing of such reports, relator was estopped from asserting in these proceedings the invalidity of the assessments. As to the Van Woert Street assessments, the Commission, as above explained, had no jurisdiction at all so the assessments were totally void; jurisdiction could not be created by relator’s mistaken report to the Commission that there existed a special franchise at that crossing. (See People ex rel. Erie R. R. Co. v. Tax supra, at pages 325 and 326.) As to Watervliet Avenue and Tivoli Street, we do not see how any question of estoppel could arise. The railroad’s reports to the Commission that the railroad had special franchises at those places are not inconsistent with the claim now made that those franchises are overassessed.

The order of the Appellate Division should be modified so as to provide that all the Van Woert Street assessments under review in these proceedings be annulled and that all the Watervliet Avenue and Tivoli Street assessments under review in these proceedings be remitted to the State Tax Commission to make reassessments, otherwise thé order should be affirmed, without costs.

The order should be modified in accordance with this opinion and as so modified affirmed, without costs. (See 292 N. Y. 717.)

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

Ordered accordingly.


author: Thacher, J.

text:
    In the Matter of Wickwire Spencer Steel Co., Judgment Creditor-Appellant, against Kemkit Scientific Corporation, Judgment Debtor. George F. Picken, as Trustee in Bankruptcy of Kemkit Scientific Corporation, Respondent.
    Submitted January 7, 1944;
    decided March 2, 1944.

      Sol S. Osier tag and Bernard I. Kamen for appellant.
    I. The moving affidavit of the trustee in bankruptcy fails to establish any right or title paramount to that of the judgment creditor. {Lockhart v. Garden City Bank & Trust Go., 116 F. 2d 658; Matter of Toms, 101 F. 2d 617.) II. The trustee in bankruptcy, should have pleaded and proved insolvency at the time the third party order was served. (Bankruptcy Act, § 67; U. S. Code, tit. 11, § 107; Fischer v. Pauline Oil Co., 309 U. S. 294; Liberty Natl. Bank v. Bear, 265 U. S. 365; Matter of Vantine’s Retail Stores, Inc., 43 F. 2d 870; Matter of Delaney, 256 N. Y. 315; Reynolds v. JEtna Life Ins. Go., 160 N. Y. 635; McCorkle v. Herman, 117 N. Y. 297; Burkett v. Simmons Hardware, 52 S. W. 2d 675; Gobbe v. Stowe, 171 Mise. 687.)

      Charles Raff for respondent.
    I. The mere service of a third in right and status to appellant by virtue of section 70e of the Bankruptcy Act (U. S. Code, tit. 11, § 110; Matter of Howe, 235 F. 908; Matter of Erie Exposition Assn., 19 P. 2d 524; Matter .of Richter, 40 P. Snpp. 758; Matter of Waynesboro Motor Go., 60 P. 2d 668; Commercial Credit Co. v. Davidson, 112 P. 2d 54; Ashbaugh v. Becker, 14 P. Snpp. 465; White v. Pacific Southivest Trust & Savings Bank, 9 P. 2d 650; Johns v. United Bank & Trust Co., 15 P. 2d 300; Clark v. Snelling, 205 P. 240; Janney v. Bell, 111 F. 2d 103.)
   Thacher, J.

On December 23, 1941, the appellant, having theretofore recovered a judgment against Kemkit Scientific Corporation, caused a third party subpoena in proceedings supplementary to judgment to be served upon National City Bank of New York directing it to appear and attend at the City Court of the City of New York. In order to make effective the restraining provisions of section 781 of the Civil Practice Act, a copy of this section was indorsed on the copy of the subpoena served upon the bank.

Upon a petition in involuntary bankruptcy filed December 27, 1941, the judgment debtor was adjudicated a bankrupt in the United States District Court for the Eastern District of New York on January 10, 1942. The bank having refused to turn over to the trustee in bankruptcy funds on deposit with it to the credit of the judgment debtor, the third party subpoena was vacated on motion of the trustee in bankruptcy by an order of the City Court. This order was reversed in the Appellate Term “ without prejudice to the trustee’s rights to proceed in accordance with Sec. 67 of the Bankruptcy Act.” The Appellate Term made a finding of fact that the trustee in bankruptcy did not attempt to establish the insolvency of the bankrupt at the time of the service of the judgment-creditor’s third party subpoena ”. In the Appellate Division this finding was unanimously affirmed but the determination of the Appellate Term was reversed on questions of law and the order of the City Court vacating the subpoena was affirmed, two justices dissenting. A motion for leave to appeal to this court was granted and a question was stated and certified to this court.

The Appellate Division held that the service of a third party subpoena with the ordinary restraining provisions does not create a lien, either legal or otherwise, in favor of the judgment creditor, citing Matter of Vantine’s Retail Stores, Inc., 43 F. 2d 870. In that case it appeared that the third party bank, being a creditor of the bankrupt, claimed the right to set off the.amount of the deposit. Here no such claim has been asserted and the question of lien or no lien arises between the judgment creditor and the trustee in bankruptcy.

Proceedings supplementary to judgment in this State furnish a substitute for the creditor’s bill formerly used in aid of execution to reach intangible assets of the debtor. The commencement of an action in the nature of a creditor’s bill gave rise to a lien upon indebtedness owing by the defendant to the judgment debtor. Similarly, the service of the third party subpoena in proceedings supplementary to execution takes the place of the commencement of a suit under the old system and gives the judgment creditor the priority of a vigilant creditor and a lien upon the equitable assets of the debtor. (Reynolds v. Ætna Life Ins. Co., 160 N. Y. 635, 648.) As early as 1845, in Storm v. Waddell, 2 Sandf. Ch. 494, Vice Chancellor Sandford held that the commencement of such a suit created a lien upon the indebtedness owing to the judgment debtor which was not divested or impaired by subsequent proceedings against the judgment debtor under the Bankruptcy Act of 1841. The full and learned consideration of the nature of the lien in the Vice Chancellor’s opinion discloses the striking analogy between the commencement of a judgment creditor’s suit in aid of execution and the issuance of a subpoena under section 781 of the Civil Practice Act. Under the present Bankruptcy Act (IT. S. Code, tit. 11) such liens are not affected by proceedings in bankruptcy when acquired more than four months before the filing of the petition in bankruptcy. (Metcalf v. Barker, 187 U. S. 165; Jasper v. Rozinski, 228 N. Y. 349, 356.)

Liens acquired within four months before the filing of a petition in bankruptcy are deemed to be null and void under certain circumstances, as provided in section 67. The applicable words of this section are: “ Every lien against the property of .a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition in bankruptcy * or against such person shall be deemed null and void (a) if at the time when snch lien was obtained snch person was insolvent or (b) if snch lien was sought and permitted in frand of the provisions of this title ” (52 U. S. Stat. p. 875; U. S. Code, tit. 11, § 107).

The creditor, having obtained a lien against the indebtedness of the bank to the judgment debtor by service of a third party subpoena which immediately brought into effect the restraining clauses of section 781 of the Civil Practice Act, may not be divested of such lien except upon proof sufficient under the provisions of section 67 of the Bankruptcy Act to render it null and void.

The order of the Appellate Division should be reversed and that of the Appellate Term affirmed, with costs in this court and in the Appellate Division. The question certified is not answered because there is no provision for the certification of a stated question in an appeal from a final order of the Appellate Division.

Lehman, Ch. J., Loughran, Rippet, Conwat and Desmond, JJ., concur; Lewis, J., taking no part.

Ordered accordingly.


author: Lewis, J.

text:
    Jennie Antonsen et al., Appellants, v. Bay Ridge Savings Bank, Respondent.
    Argued January 10, 1944;
    decided March 2, 1944.

      Harry Elegant and Harry Silver for appellants.
    The evidence entitled the jury to find that control of the ceiling remained with the defendant. (Sendero v. Campbell, 288 1ST. T. 328; Cuttings v. Goetz, 256 N. T. 287.)

      Clarence S. Zipp and J. Austin Lyons for respondent.
    I. Plaintiffs failed to make out a cause of action, and their complaint was properly dismissed. The landlord may not he held liable to the tenant, or to the latter’s invitee, when a defect existing at the time of lease is known to the lessee or discoverable by the latter on a reasonable inspection. (Jaffe v. Harteau, 56 N. Y. 398; Hirsch v. Badt, 228 N. Y. 100; Vousden v. United-Cities Realty Corporation, 194 App. Div. 26; Campbell v. Holding Co., Inc., Y. 446; Kilmer v. White, 254 N. Y. 64; Sacks v. Sunset Hitt Realty Corp., 250 App. Div. 778, 276 N. Y. 668; Liebowitz v. Denison Realty Corp., 250 App. Div. 204, 277 N. Y. 670; Lenetsky v. Dime Sav. Bank of Brooklyn, 261 App. Div. 977; Altz v. Lieberson, 233 Y. 16; Beauchamp v. Excelsior Brick Co., 143 App. Div. 48; Sterger v. Van Sicklen, 132 N. Y. 499.) II. Defendant had a right to ignore the defective condition of plaintiffs’ kitchen ceiling. It was under no duty to correct that condition. There conld then he no conceivable ground for recovery in nuisance, for a condition can constitute a nuisance only when it is wrongful. (Wilks v. N. Y. Telephone Co., 243 N. Y. 351; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Smith v. Earle, 202 App. Div. 305; Hines v. Cielo, 260 App. Div. 878, 285 N. Y. 786.)
   Lewis, J.

The two plaintiffs — husband and wife — reside on Seventh Avenue, Borough of Brooklyn, in a two-family house of which the defendant-respondent, Bay Ridge Savings Bank, is a mortgagee in possession. On March 18, 1940, the plaintiff wife sustained personal injuries when in her apartment a portion of the kitchen ceiling fell upon her. In their present action against the defendant a jury at Trial Term returned in favor of both plaintiffs a verdict which awarded damages to the wife for personal injuries and to the husband for loss of his wife’s services. The judgment entered upon the jury’s verdict was reversed on the law at the Appellate Division and the complaint was dismissed on the law. The order of the Appellate Division directs that the findings of fact implicit in the verdict be and the same hereby are affirmed.”

The building here involved is concededly of a type which makes inapplicable either the Multiple Dwelling Law or the Tenement House Law. Accordingly, if the defendant is to be held liable in this action, it must be upon proof of a breach of its common-law duty.

The plaintiffs had occupied their apartment under a month-to-month tenancy commencing on the 15th day of each month. There is evidence that when the apartment was first rented by the defendant to the plaintiffs the defendant had agreed to make repairs as they became necessary and had done so until the month of December, 1939, when a crack developed in the kitchen ceiling. Despite the fact that this condition was brought to the attention of the defendant’s agent, no repairs were then made. As time passed the condition became worse until the early part of March, 1940, when the ceiling crack had widened to such an extent that a portion of the plaster was dislodged and hung down. On March 9th the plaintiff husband went to the defendant’s office where he complained of the condition and was assured by the defendant’s agent that the ceiling would be repaired. Three days later one of the defendant’s agents came to the apartment at which time, after inspecting the kitchen ceiling-, the plaintiffs were again assured that repairs would be made. There is evidence that in reliance upon this promise made in behalf of the defendant the plaintiffs renewed their lease of the apartment and took possession for the month beginning March 15th. However, no repairs were made prior to March 18th, on which date the kitchen ceiling fell causing injuries to the plaintiff wife which are the subject of the present action.

In submitting the case to the jury the Trial Justice, at the request of counsel for the defendant, charged that “ There may be no recovery in this case for the plaintiffs based on the alleged promise to repair the ceiling; ⅞ ⅝ ⅝ that there is no duty at common law on the part of the owner or one acting in the owner’s stead to repair a ceiling in a two-family house, such as involved in this case, where the portion of the premises involved was demised in its supplied.) In view of those instructions — which became the law of the case and to which we must assume the jury gave full heed (People v. Guardino, 286 N. Y. 132, 135) — there is implicit in the verdict for the plaintiffs a finding that, under the terms of the lease by which the plaintiffs occupied the apartment, the defendant as landlord reserved control of the premises to the extent of permitting it to make repairs. In support of such a finding- there is evidence that several days after the accident the defendant’s agent came to the plaintiffs’ apartment and installed in the kitchen a new tin ceiling in place of the plaster ceiling which had fallen on March 18th. The evidence of repairs thus made by the defendant after the accident came into the case over the defendant’s objection at a time when the important issue before the trial court was whether the defendant had given to the plaintiffs complete and exclusive possession of the premises. The Trial Justice carefully limited the receipt of that evidence to the inquiry whether at the time of the letting there had been a reservation of a degree of control of the premises by the'defendant as landlord. The evidence was admissible for that purpose. (Scudero v. Campbell, 288 N. Y. 328, 329.) It was evidence from which the jury could find “ # * * a reservation by [the defendant] of one of the privileges of ownership.” (See Cullings v. Goetz, 256 N. Y. 287, 291.)

The fact that the case was submitted to the jury on the theory of a nuisance maintained by the defendant rather than its negligence did not prejudice the defendant. Despite the possible misnomer the basis of defendant’s liability was the same. (Kirsch v. 228 N. Y. 100, 105; Junkermann v. Tilyou Realty Co., 213 N. Y. 404, 408; Klepper v. Seymour House Corp., 246 Y. 85, 92.) That basis in this instance was the evidence to which reference has been made from which the jury could have found that the possession and dominion of the premises demised by the defendant to the plaintiffs was not exclusive and complete but reserved to the defendant such a measure of control as permitted it to make necessary repairs. The duty to keep a building or part of it in repair is coextensive with the control retained by the landlord.” (Zolezzi v. Bruce-Brown, 243 N. Y. 490, 497.)

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

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

Judgment accordingly.


author: Loughran, J.

text:
    Acorn Employment Service, Inc., et al., Appellants, Paul Moss, as Commissioner of Licenses of the City of New York, Respondent.
    Argued January 6, 1944;
    decided March 2, 1944.

      William E. Vogel for appellants.
    I. This suit for a declaratory judgment is proper and can be maintained. (Dun &
      Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Socony-Vacuum Oil Co., Inc., v. City of New York, 247 App. Div. 163, 272 N. Y. 668; Brown v. University of the State of New York, 242 App. Div. 85, 266 N. Y. 598; New York Operators v. State Liquor Authority, 285 N. Y. 272; James v. Alderton Bock Yards, 256 N. Y. 298; Town of Ohio v. People, 264 App. Div. 220.) II. Declaratory judgment should have been granted, declaring that respondent has no power to issue rules and regulations for the conduct of the business of employment agencies, and that the rules and regulations promulgated and enforced by respondent are unreasonable, arbitrary, oppressive and without authority of law. (Matter of Executive Service Corp. v. Moss, 256 App. Div. 345; Matter of Small v. Moss, 277 N. Y. 501, 279 N. Y. 288; Matter of Picone v. Comr. of Licenses, 241 N. Y. 157; Matter of Goelet v. Moss, 248 App. Div. 499, 273 N. Y. 503; Matter of Larkin Co. v, Schwab, 242 N. Y. 330; Darweger v. Staats, 243 App. Div. 380, 267 N. Y. 290; Matter of Lyons v. Prince, 281 N. Y. 557; Matter of Seignious v. Bice, 273 N. Y. 44; Brown v. University of the State of New York, 242 App. Div. 85; Schechter Corp. v. United States, 295 U. S. 495; Panama Refining Co. v. Ryan, 293 U. S. 388; Bus Depot Holding Corp. v. Valentine, 288 Y. 115; Matter of International Ry. Co. v. Public Service Comm., 264 App. Div. 506, 289 N. Y. 830.) III. Section 885 of the New York City Charter has no application to this case.

      Ignatius M. Wilkinson, Corporation Counsel (Murray Sendler and James Hall Prothero of counsel) for respondent.
    I. The commissioner of licenses has statutory authority to establish rules, regulations and administrative procedures in the performance of his duty to enforce article 11 of the General Business Law. (People ex rel. Armstrong v. Warden, 183 N. Y. 223; Matter of Perpente v. Moss, 265 App. Div. 789; Vih of Sara-toga Spgs. v. Saratoga Q., etc., Co., 191 N. Y. 123; Campbell v. City of New York, 244 N. Y. 317.) II. The commissioner has implied authority to make rules which ascertain the facts to which the Legislature’s standards of enforcement apply. (United States v. Bailey, 9 Pet. 238; People v. Delaware & Hudson Canal Co., 165 N. Y. 362; Hannibal Bridge Co. v. United States, 221 U. S. 194; Lloyd Royal Beige, S. A., v. Elting, 61 F. 2d 745, 289 IT. S. 730; Matter of Natelson v. Portfolio, 291 N. Y. 290.) III. The commissioner’s rule-making powers transgress no constitutional prohibition upon delegation of legislative functions. (Mutual Film Gorp. v. Ohio Indus’l Comm., 236 U. S. 230; People ex rel. Doscher v. Sisson, 222 N. Y. 387.) IY. Section 885 of the New York City Charter gives additional broad rule-making powers to the commissioner. {Matter of Friedman v. Valentine, 177 Mise. 437, 266 App. Div. 561; Matter of Natelson v. Portfolio, 291 N. Y. 290; Matter of Creveling & Son Gorp., 259 App. Div. 351.) Y. Rule-making power given by section 885 of the Charter may properly implement the legislative policy and standards of article 11 of the General Business Law. {Baddour v. City of Long Beach, 279 N. Y. 167, 308 U. S. 503; Levy v. Valentine, 173 Mise. 306.) YI. The Commissioner’s rules are appropriate to his enforcement of article 11 of the General Business' Law. (Matter of Picone v. Comr. of Licenses, 241 N. Y. 157; Matter of Small v. Moss, 279 N. Y. 288; Matter of Seignious v. Bice, 273 N. Y. 44; Darweger v. Staats, 267 N. Y. 290; Matter of Village of Boonville v. Malt-tie, 272 N. Y. 40.) YII. No plaintiff is subject to actual or imminent detriment by reason of any assertion of the rule-making power of the License Commissioner; hence no question of constitutionality is presented, and plaintiffs have no right to to equitable relief. (Campbell v. City of New York, 244 N. Y. 317; Jones Beach Boulevard Estate, Inc., v. Moses, 268 N. Y\ 362; Matter of Executive Service Gorp. v. Moss, 256 App. Div. 345; Matter of Corporate Employment Service, Inc., v. Moss, 261 App. Div. 586, 286 N. Y. 601; Matter of Corporate Employment Service, Inc., v. Moss, 263 App. Div. 14, 287 N. Y. 794, 288 N. Y. 584; Headley v. City of Rochester, 272 N. Y. 197; Town of Ohio v. People, 264 App. Div. 220; James v. Alderton Dock Yards, 256 N. Y. 298.)
   Loughran, J.

The action is one for a judgment declaring the invalidity of certain pronouncements addressed by the Commissioner of Licenses of the City of New York to the employment agencies that are subject to his licensing jurisdiction. Plaintiffs (an aggregation of such agencies) also demand accessory injunctive relief.

Special Term dismissed the complaint, saying by its judgment that “ the Commissioner of Licenses, pursuant to Article 11 of the General Business Law and Section 885 of the New York City Charter, is empowered to promulgate and issue all necessary rules, regulations, orders and directions for the proper operation, conduct and maintenance of employment agencies licensed by him, so as to effectively administer Article 11 of the General Business Law ”. This handling of the cited statutes is contested by the plaintiffs on the present appeal by them from a non-unanimous affirmance by the Appellate Division of the judgment of Special Term.

Licensing of the employment agencies in question is regulated by article 11 of the General Business Law. Section 173 thereof defines the contents of an application for a license. It provided: “ Such application shall be written and in the form prescribed by the mayor or commissioner of licenses, and shall state the name and address of the applicant; the street and number of the building or place where the business is to be conducted; whether the applicant proposes to conduct a lodging house for the unemployed separate from the agency which he proposes to conduct; the business or occupation engaged in by the applicant for at least two years immediately preceding the date of the application.” On the strength of these words, the Commissioner has adopted a form of application that includes this addendum: “ In consideration of being granted the license hereby applied for, I agree to comply with all the rules and regulations of the License Department that are now in force or that may in the future be promulgated.”

In asserted reliance upon the same section 173, the Commissioner has furthermore made an order requiring that the following regulations, among others, shall he a part of every application for a license: “ The approval of the Commissioner of Licenses must be obtained by any licensed employment agent who desires to maintain night telephone service. ⅞ ⅜ * The Department deprecates the bringing of an action at law by an employment agent an applicant for employment for services rendered such applicant. * ⅜ ⅜ Violation of any of the foregoing regulations shall be deemed just and sufficient cause for the suspension or revocation of the offender’s license or the withholding of renewal of snch license.” Section 174 of the statute sets forth altogether different specific grounds for refusal of a license and section 191 announces these less rigorous standards: The said mayor or commissioner of licenses may refuse to issue and shall revoke any license for any good cause shown, within the meaning and purpose of this article and when it is shown to the satisfaction of the mayor or commissioner of licenses that any licensed person is guilty of any immoral, fraudulent or illegal conduct in connection with the conduct of said business, it shall be the duty of the mayor or the commissioner of licenses to revoke the license of such person; but notice of the charges shall be presented and reasonable opportunity shall be given said licensed person to defend himself.”

Section. 176 of article 11 forbids an assignment or transfer of a license or change of location of an employment agency without the consent of the Commissioner. The Commissioner has made a supplementary order requiring the consent of the Commissioner to a sale of business records by one agency to another.

On the trial herein, the Commissioner gave this testimony: “ Q. There is nothing in the law which says an agent has to do a certain amount of business? A. No. Q. But you have it as a rule of your own? A. Yes, and I am not arbitrary about it either. * * Q. That is, you feel you are filling gaps left open by the Legislature? A. Oh, yes.”

Section 185 of the statute fixes the fees that may be charged by agencies. In Matter of Executive Service Corp. v. (256 App. Div. 345), the court on March 3, 1939 said: “There is nothing contained in section 185 of the General Business Law or in any other of its pertinent provisions which prescribes as a regulation or condition for the issuance or exercise of a license that any certain form of agreement is necessary between the agency and the employee” (p. 347). On April 3, 1939, the Commissioner sent to a licensee the following communication: “ You are advised that in our judgment you must not charge more than one week’s salary for a position unless there is a written contract, and if there is a violation of this order, you will be summoned to this Department for further action against your license.”

The above-stated commands of the Commissioner will serve without more to bring out the scope and effect of the judgment under review. There can be no doubt that the functions thereby adjudged to belong to the Commissioner are legislative in character. Nor can there be any doubt that such exercise of undefined general power must be denied to administrative officers. (Matter of Small v. Moss, 277 N. Y. 501, 279 N. Y. 288; Matter of Lyons v. Prince, 281 N. Y. 557; Matter of Corporate Employment Service, Inc., v. Moss, 286 N. Y. 601; Matter of Northwestern Nat. Ins. Co. v. Pink, 288 N. Y. 359. See, too, Matter of Cherry v. Board of Regents, 289 N. Y. 148.)

We have not forgotten section 885 of the Charter of the City of New York. Each head of an agency of the city is thereby permitted within limits to make “ rules and regulations for the conduct of his office or department and to carry out its powers and duties.” The authority so conferred is administrative, not legislative, and does not justify the above-stated commands of the Commissioner. (Matter of Natilson v. Hodson, 289 N. Y. 842. See Smith v. City of New York, 289 N. Y. 517.)

We believe the Corporation Counsel is mistaken in his assumption that such commands can be reviewed only upon a showing of actual or imminent detriment resulting therefrom. (See Columbia System v. U. S., 316 U. S. 407, 417.)

The judgments should be reversed, with costs to the plaintiffs in all courts, and the action remitted to Special Term for further proceedings not inconsistent with this opinion.

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

Judgments reversed, etc.


text:
    Elizabeth C. Stonborough, Respondent, v. Preferred Accident Insurance Company of New York, Appellant.
    Argued January 3, 1944;
    decided March 2, 1944.

      Irving I. Goldsmith and Jos. L. Roesch for appellant.
    The appellant is not liable to the respondent on the policy it issued to her husband. (Fuchs v. London & Lancashire Indemnity Go., 171 Mise. 908, 258 App. Div. 603; Materazsi v. Commercial Casualty Ins. Co., 157 Mise. 365; 755 Seventh Ave. Corp. v. Carroll, 266 N. Y. 157; Weatherwax v. Royal Indemnity Co., 250 N. Y. 281; Coster v. Coster, 289 N. Y. 438; Gutta Percha'& R. Mfg. Co. v. Mayor, 108 N. Y. 276; Hellstern v. Hellstern, 279 N. Y. 327;
      Matter of Whitney & Kitchen, 146 App. Div. 45; Jennings v. Louchs, 163 Mise. 791; Fox v. Employers’ Liability Assur. Corp., 243 App. Div. 325, 267 N. Y. 609; Lorando v. Gethro, 228 Atass. 181.)

      Philip Hoffer and James A. Doherty for respondent.
    Under an automobile liability policy, tbe company’s liability must be read as of tbe day of tbe accident and not as of tbe date of tbe judgment. Tbe judgment should be affirmed. (Messersmith v. American Fidelity Co., 232 N. Y. 161; DiMarco v. Ciccone, Inc., 287 N. Y. 601; Green Bus Lines v. Ocean Acc. & Guaranty Corp., 287 N. Y. 309; Brassil v. Maryland Casualty Co., 210 N. Y. 235; Douglas v. United States Fidelity & Guar. Co., 127 A. 708; Rosell v. Rosell, 281 N. Y. 106; New Amsterdam Casualty Co. v. Mandel, 170 A. 19.)
   Per Curiam:

A motor vehicle liability policy issued by tbe defendant to Thomas Stonborough undertook to pay on bis behalf — “ all sums which tbe insured shall become obligated to pay by reason of tbe liability imposed upon him by law for damages, * ⅞ # sustained by any person or persons, caused by accident and arising out of tbe ownership, maintenance or use of tbe (insured’s) automobile.” On tbe date when tbe plaintiff was injured in tbe automobile covered by that policy she was not married to tbe insured. When later an action was instituted by her against tbe insured, and when judgment in that action in her favor was entered against tbe insured, she bad become tbe insured’s wife. In tbe present action by tbe same plaintiff against tbe defendant insurer to recover tbe amount of such judgment entered by tbe plaintiff against tbe insured (her husband), payment is resisted upon tbe ground that tbe insurer incurred no liability because at tbe time judgment was obtained tbe plaintiff was tbe insured’s wife and tbe policy which is tbe basis of tbe suit did not contain tbe express provision required by section 167, subdivision 3, of tbe Insurance Law covering liability for injuries sustained by tbe insured’s spouse.

By tbe terms of tbe policy tbe liability of tbe insurer became fixed on tbe happening of tbe accident, at which time tbe plaintiff and tbe insured were not married. We have not overlooked tbe ruling to tbe contrary in Fuchs v. London & Lancashire Indemnity Co., 258 App. Div. 603, which was not reviewed by this court.

The judgment should be affirmed, with costs.

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

Judgment affirmed.