author: Finch, J. Lehman, Ch. J.

text:
    Wallace T. Miller, Appellant, v. Frank A. Vanderlip, Jr., et al., Respondents, Impleaded with Others.

      Argued January 8, 1941;
    decided March 6, 1941.

      William W. Pellet and G. Kenneth Brown for appellant.

      Albert Parker and Arthur J. Marangelo for respondents.
   Finch, J.

Upon this appeal the issue is whether the allegations of the complaint are sufficient to state a cause of action. We are not now concerned with the proof of the allegations or the proof of damages which must await a trial.

Two causes of action are alleged. The first for breach of contract, and the second apparently for conspiracy to breach the same contract. Since the second cause of action cannot stand if the first falls, we come to the allegations contained in the first cause of action. These are as follows:

Plaintiff, a man of considerable experience in' designing, manufacturing and selling automobiles, was asked by certain unnamed stockholders of the Reo Motor Car Company* a Michigan corporation, to interest outstanding businessmen in the rehabilitation of the company, which had been operating at a loss for some time. Plaintiff succeeded in interesting six such persons who, for convenience, will be referred to as the defendants although two of their number are now deceased and it is their executors who have been joined as parties defendant. The plan evolved by the parties to restore prosperity to the Reo Company contemplated the hiring of competent business managers by the company. The managers were to be engaged at comparatively small salaries, but in order to induce them to accept positions with Reo, they were to be given options on shares of stock which up to that time had remained unissued. ' On January 28, 1937, plaintiff and defendants, none of whom is alleged in the complaint to be either a stockholder or a director of Reo, entered into an agreement among themselves to organize a stockholders’ committee which would seek to bring about an increase in the number of directors on the company’s board, and thereafter the parties were to urge upon the new board the adoption of the plan referred to above. The parties agreed to carry out the object of their agreement “ insofar as within their power lay.”

The complaint alleges that it was agreed that the best interests of the company called for the adoption of the plan and the election of plaintiff as president and general manager for a term of three years at an annual salary of $9,000 plus options at a given price on 38,000 unissued shares. It was further agreed that plaintiff should advance a substantial sum to defray the expenses of the stockholders’ committee and should devote his efforts to bringing about the desired increase in the number of directors. The committee was organized, plaintiff advanced to it the sum of $3,000 and devoted his efforts as agreed. As a result of the work of the committee and of plaintiff, the board was increased from five to nine members, and the stockholders elected a board which was satisfactory both to the committee and to the parties to this action. Defendants, however, failed to take the next step called for by the agreement, to wit, to advocate before the new board the adoption of the plan and of plaintiff’s election as president and general manager. In consequence of the defendants’ failure to perform their agreement, plaintiff has received no offer of employment and no options upon the company’s unissued stock. It is also alleged that had the defendants * * * caused to be submitted to said Board of Directors the plan * * * and in good faith advocated its adoption, the said plan would have been approved and adopted by said Board of Directors ..acting for the best interest of said corporation.”

These are the allegations which it is said do not state a cause of action because (1) the agreement sued upon is illegal, and (2) the agreement, even if legal, is too vague and illusory and hence does not amount to a contract upon which an action may be maintained. We take up first, whether the' agreement was unenforceable on account of illegality.

Respondents rely upon cases which establish the well-settled doctrine that directors of a corporation may not be divested of their discretion in the management' of the company’s affairs. (Manson v. Curtis, 223 N. Y. 313; Fells v. Katz, 256 N. Y. 67; McQuade v. Stoneham, 263 N. Y. 323; but cf. Clark v. Dodge, 269 N. Y. 410.) We are of course limited to the allegations in the complaint and may not speculate in regard to matters not contained therein. Nowhere in the complaint is it alleged that any of the defendants were directors of the Reo Motor Car Company at the time when the agreement was to be completed by the defendants’ advocacy of the plan. Hence, the principle relied upon does not govern the situation and the complaint may not be deemed to allege an illegal agreement upon this score. While the directors owe a duty to all of the stockholders to act only according to their best judgment, there is no reason why any stockholder, or any outsider for that matter, may not urge upon the board considerations in favor of or opposed to a proposed course of action in the interest of the company. It cannot successfully be contended that_directors must act without the advantage of taking into consideration the views and information furnished by others. To listen to the arguments advanced by others is not to abandon discretion or judgment in the premises, but merely to weigh as many factors as possible.

It is to be noted that nowhere in the complaint is it alleged that the defendants have been stockholders of the Reo Motor Car Company at any time. The position of the defendants, therefore, is that of the advocate who undertakes to present the view of another. Whether such an agreement is lawful under all circumstances need not now be decided, for it is further alleged that the defendants undertook to urge the plan in question in the belief that its adoption would be for the best interest of the company. In the case at bar there is only the very narrow question as to whether men of standing in the business world may undertake to urge a given line of advice upon a company in which they have no interest, and to urge a course of action from which no apparent profit will accrue to the advocates.

But even if it were to be assumed that the defendants were stockholders, and even if it were to be assumed that the defendants would profit as a result of the adoption of the plan, would it necessarily follow that the agreement is illegal? There is nothing in the complaint from which it may be inferred that the profits which would flow to the proponents of the rehabilitation plan would not equally flow to all the other stockholders, except for the fact that the plaintiff would obtain the emoluments of an office, which obviously cannot accrue to more than one or, at most, to a very limited number. In this connection it is to be noted that not even the benefits which would accrue to the plaintiff would be obtained at the expense of any of the other stockholders. The complaint alleges that the compensation which would have been paid to plaintiff would have been a fair and just remuneration for his services to the company. In no sense, therefore, would any one group of stockholders be the recipients of an advantage at the expense of the others.

The only possible objection upon this phase, therefore, is that the agreement is necessarily bad because certain stockholders bound themselves to exercise their judgment in a given way in advance of the time when they would be called upon to exercise that judgment in the course of their activities as stockholders. A similar question was raised in Brightman v. Bates (175 Mass. 105) where it was argued that an agreement was illegal because it bound some of the stockholders to surrender their voting rights to a committee which was to name the board of directors at each annual meeting for three years. It is as legitimate for a majority of stockholders to combine as for other people. The fact that they expect ' gain and advantage ’ * * * to accrue to them, does not make the combination unlawful. That expectation and intent would have that effect only if the gain was to be at the expense of the corporation, or in some way was intended to work a wrong to the other stockholders * * *. It is suggested that this was an unlawful attempt by the contracting parties to deprive themselves in advance of their deliberative power and duty as stockholders, and to submit themselves to the dictation of five men who in the future might not even be members of the corporation. * * * The question before us is not whether it would be possible to carry out the contract in a way which would have made the contract bad if specified in it, but whether it was impossible to carry out the contract in a way which might lawfully have been specified in advance. We put the question in this form because there is no doubt that the subscribers [stockholders] might actually have done the things stipulated without giving anyone a right to complain. That is to say, they might have held their stock and voted the previous understanding according to the advice of the committee, as long as they chose. The question is what they might contract to do; * * * We know nothing in the policy of our law to prevent a majority of stockholders from transferring their stock to a trustee with unrestricted power to vote upon it. [Cas. cit.] Supposing that the committee had been trustees, what would the syndicate agreement have amounted to then? Merely an agreement by each of the trustees to vote as they should jointly agree to vote, and an agreement by the subscribers not to demand back their shares for three years. The latter term certainly is not illegal, whether valid or not. * * * As to the arrangement for the trustees uniting to elect their candidates, the decisions of other states show that such arrangements have been upheld, and we do not think that it needs argument to prove that they are lawful. If stockholders want to make their power felt, they must unite. There is no reason why a majority should not agree to keep together. [Cit. cas.] ” (Per Holmes, Ch. J., at pp. 110-111.)

A further point of illegality is said to be found in the failure of the complaint to allege that the plaintiff, at the time of the agreement, was, or, in the contemplation of the agreement, was to become, a director of the corporation and hence eligible for election as president. (Stock Corporation Law, § 60; Cons. Laws, ch. 59.) The answer to this is two-fold. First, The Reo Motor Car Company is a Michigan corporation and we may not indulge in a presumption that the statutory law of Michigan is the same as of this State. And second, even if plaintiff were ineligible to assume the post of president of the company, he would still remain eligible for the post of general manager. The agreement, therefore, may be said to call for an illegal act not in the sense that it sought to induce another to violate a legal duty or to subvert the legal rights of another, but only in the sense that it sought to accomplish that which was impossible of attainment. The fact that plaintiff might not be eligible to be both president and general manager is no excuse for the failure of the defendants to urge the selection of plaintiff for the position of general manager, albeit in that event the remuneration of plaintiff probably would not have been the same as if he had occupied both positions. Thus if for a valid consideration “ A ” makes two promises to B,” and one of the two promises calls for an impossible performance, there is no reason why “ A ” should not be called upon to perform in so far as he is able to do so.

The point is also made that plaintiff was to be engaged for a term of three years, whereas section 60 of the New York Stock Corporation Law provides that “ The directors may require any such officer [including president], * * * to give security for the faithful performance of his duties, and may remove him at pleasure.” Even if it be assumed, but without deciding, that plaintiff could not have been engaged for the full term of three yéars, the answer is the same as in regard to plaintiff’s ineligibility for the position of president.

Whether the agreement is illusory.

It is said that there is no specific allegation of a promise on the part of the defendants to urge the new board of directors to adopt the rehabilitation plan. We do not so read the complaint. On the contrary, the complaint may be fairly said to allege such a promise on the part of defendants. It is next contended that even if the defendants did so undertake, the plaintiff fails properly to allege that the defendants could control the action of the board of directors or that the plaintiff was eligible for the positions to which he aspired. So far as concerns the plaintiff’s ability to perform, there is due allegation that he was at all times ready, able and willing to perform the agreement on his part. Even if this allegation were deemed insufficient, there is no objection apparent to plaintiff’s qualifications for the office of general manager.

That the defendants did not control the board of directors is not pertinent to the cause of action alleged in the complaint. The plaintiff’s grievance is not simply his failure to receive from the company the offer of employment and its attendant emoluments, but the failure of the defendants to keep their promise to urge plaintiff’s employment upon the members of the board. The extent of plaintiff’s damages will, of course, depend upon the proof adduced in support of the allegations, and it is now unnecessary to determine, as was said herein at the outset, the manner in which plaintiff will be able to establish the damages he has suffered. It is sufficient that the right to have another person advocate one’s own advancement is a right of some value. It may not be assumed that another person’s advocacy of one’s cause is a thing of value only when the advocate is a professional lawyer and not when the other person is a man distinguished in the world of business or possessing other special qualifications. The promise of defendants, therefore, was a promise of some value and it must be assumed that by their promise the defendants agreed to perform in accordance with their abilities and in good faith. (Wood v. Duff-Gordon, 222 N. Y. 88.)

The first alleged cause of action, therefore, is sufficient.

The second cause of action is only against some of the defendants named in the first cause of action, plus one person not so named. Although the plaintiff may have a cause of action for interference with his contract rights, on the part of the person not named in the first cause of action, plaintiff himself apparently does not so construe the second cause of action. Instead, when fairly read and as construed by plaintiff, the second cause of action seeks to restate as a conspiracy that which amounts to nothing more than the breach of contract alleged in the first cause of action. The second cause of action adds nothing by way of legal liability, and only seeks to explain the possible motives of defendants for their failure to perform the agreement sued upon in the first cause of action. Since plaintiff’s cause of action for breach of contract is his entire grievance against the defendants he may not split his causes of action based upon a single grievance and, therefore, the second cause is bad and should be dismissed.

The judgment of the Appellate Division, in so far as it dismisses the first cause of action, should be reversed, and the motion to dismiss such cause of action denied, with costs in this court and in the Appellate Division; otherwise the judgment of the Appellate Division should be affirmed.

Lehman, Ch. J.

(dissenting). Upon motion of the defendants the complaint has been dismissed on the ground that it fails to state facts sufficient to constitute a cause of action. The complaint alleges that the defendants made a contract with the plaintiff, that they breached the contract and that by reason of ” such breach the plaintiff suffered damages. The questions which we must consider upon this appeal are whether it appears upon the face of the complaint that the alleged contract was for an unlawful purpose and, therefore, unenforceable, and whether the contract was of such nature that the general rule that damages may be presumed to result from a breach of contract does not apply.

The allegations of the complaint, so far as relevant to those questions, are that the plaintiff succeeded in interesting the defendants who were prominent and well-known business men ” in a plan for the rehabilitation of Reo Motor Car Company. All the parties agreed that the plan suggested by the plaintiff was the best way to bring about the rehabilitation of said corporation and to place it in a position where it could operate at a profit to the stockholders.” They further agreed that the plaintiff was a proper and competent party to become President and General Manager of said coiporation in accordance with the said plan.” In order to carry out the foregoing objects * * * the defendants * * * entered into an agreement among themselves and with the plaintiff, in consideration of the mutual promises and agreements, to organize a committee of stockholders of the Reo Motor Car Company, for the purpose, insofar as within their power lay, of bringing about an increase in the authorized number of directors in the Reo Motor Car Company, and the election of directors for the purpose of effecting the rehabilitation of the Reo Motor Car Company by the consideration of the plan substantially as outlined by said parties; and it was further agreed by and between the plaintiff and said parties that each of them would and should endeavor in a legal and proper manner to effect such increase of directors and the adoption of said plan, and thereupon such committee was organized.”

The complaint further alleges that the parties agreed among themselves and with the plaintiff that it would be for the best interest of said corporation to have said corporation enter into a compact whereby the plaintiff should act as president and general manager of the corporation for three years at a salary of $9,000 per year; that the board of directors should authorize the issuance of calls or options for three years on 200,000 shares of unissued stock of said corporation at five dollars per share, to be used for the purpose of obtaining the services of competent and qualified employees, and that the plaintiff should receive calls on 38,000 shares of such stock for his services to the corporation and as additional consideration for his agreement to act as president and general manager. The plaintiff also alleges in his complaint that as a result of the efforts of the committee and of the plaintiff, the board of directors was increased from five members to nine members, and at the annual meeting of the stockholders a board of directors was elected which “ was satisfactory to the committee and to said parties.” The defendants, however, “ failed to cause said plan to be submitted to said board of directors and failed to advocate its adoption by said board,” and, it is alleged, “ by reason thereof said plan was never considered or adopted by said board and the plaintiff was never offered any contract with said corporation for his services as President and General Manager, or in any other capacity.”

We must assume the truth of the allegations of the complaint that the plan was calculated to advance the best interests of the corporation. The board of directors would have been justified in accepting such a plan, with such modifications in the terms of any contract made with the plaintiff in order to secure his services as president and general manager, as might perhaps be required by the law of the State. Co-operation by stockholders, directors or “ prominent and well-known business men,” perhaps without any direct interest in the corporation, to promote a plan which all believe would best serve the corporation and its stockholders, is certainly not prohibited by law, or against any public policy. The question remains, however, whether the defendants could lawfully bind themselves under penalty of damages to continue to co-operate until the plan was actually adopted. If the complaint had alleged that the plan contemplated that the defendants should be elected or re-elected as directors, the vice of an agreement made by them before election to advocate and attempt to cause the adoption of a particular plan of future action by the corporation and to elect'a particular man as president would be apparent. Directors may not, in advance, fetter a discretion which they are bound to exercise for the benefit of the corporation. It is said, however, that here the complaint does not allege, and that we may not assume, that the defendants were either directors or stockholders. That may be. true, but it does allege, as I have pointed out, that the defendants were “ prominent and well-known business men ” and that the plan was never considered or adopted by the board because the defendants did not advocate it. The alleged wrong to the plaintiff is that the defendants failed to promote the adoption of the plan by the use of influence or power which was sufficient and which the parties contemplated would be sufficient to secure its adoption. Otherwise the plaintiff would not have suffered any damages by reason of the failure of the defendants to carry out their alleged promise. The problem which we must determine is whether men with such influence or control making such a promise, are subject to damages for failure to carry it out.

No question of whether the defendants’ alleged failure to carry out their alleged promise was due to a desire to obtain profit through the adoption of a different plan by the corporation, should be permitted to obscure the question of whether the promise is binding and enforceable under our law. Change of heart or of opinion, even though based on sound reasons, will not excuse the failure to perform a binding promise, nor will selfish or even corrupt motives create liability for failure to carry out a promise which is not binding. If the allegations of the complaint are sufficient to constitute a cause of action, then proof that the defendants in good faith came to the conclusion that the plan which they agreed to promote was not calculated to promote the interests of the corporation as well as the plan which they subsequently advocated, would constitute no defense. I cannot escape the conclusion that it is contrary to public policy to permit a man seeking to become president and general manager of a corporation to obtain from others, be they directors, stockholders or “ prominent and well-known business men,” who can influence or direct action by the corporate board of directors, a binding promise to advocate his employment for a previously agreed upon compensation. A disappointed seeker of corporate office should not be allowed to recover damages resulting from loss of the compensation or profits which he would have received if the men who had promised to promote his candidacy and who had influence sufficient to induce the board of directors to elect him had not thereafter chosen to present and advocate a different plan for corporate action.

The judgment of the Appellate Division should be affirmed.

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

Judgment accordingly.


source: Caselaw Access Project

author: Rippey, J. Lehman, Ch. J.

license: Public Domain

text:
    In the Matter of Isabella Verdecanna, Appellant, against William F. Carey, as Treasurer and Trustee of the Relief and Pension Fund of the Department of Street Cleaning of the City of New York, Respondent.
    Argued January 8, 1941;
    decided March 6, 1941.

      Samuel Resnicoff for appellant.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Henry J. Shields of counsel), for respondent.
   Rippey, J.

Frank Verdecanna, a sweeper in active service in the Department of Sanitation of the City of New York (formerly the Department of Street Cleaning), died on September 1, 1937. His widow, the petitioner herein, applied for a pension to the Commissioner of Sanitation, as treasurer and trustee of the relief and pension fund of which he was the custodian and administrator for the benefit of those who were members of such fund on December 1, 1929, their widows, orphans and dependent parents. Upon denial of the application by the Commissioner, the widow brought this proceeding under article 78 of the Civil Practice Act to procure an order directing the Commissioner to award her a pension of six hundred dollars per annum effective as of the date of her husband’s death. The order of the Special Term dismissing the petition was affirmed by the Appellate Division. The petitioner appeals from the order of the Appellate Division by permission of this court.

The State Legislature provided in chapter 839 of the Laws of 1911 for the creation, administration and use of a relief and pension fund for the employees of the Department of Street Cleaning of the city of New York by adding sections 548 to 557, both inclusive, to the Charter of the City of New York (L. 1901, ch. 466, as amd.). Since that enactment, various amendments have been made to the Charter affecting the administration and use of the fund and the organization and control of the Department of Street Cleaning which need not be here considered at length (L. 1915, ch. 500; L. 1917, ch. 615; L. 1923, ch. 100; Local Laws Nos. 13 of 1929, 21 of 1930, 5 of 1931 and 5 of 1933. Also, see, Administrative Code [L. 1937, ch. 929], tit. G, art. 1, p. 1441). It is sufficient for present purposes to say that the Department of Sanitation finally emerged out of the amendments in place of the street cleaning department, so called, in charge of a Commissioner of Sanitation with jurisdiction over the administration of the relief and pension fund and that the fund was continued only for the benefit of officers and employees of the city who were members of the fund on December 1, 1929, and their beneficiaries, with their rights, privileges, obligations and status with respect to the system or fund remaining unchanged. Benefits to be derived from the fund were not left available for employees of the Department of Sanitation who entered the employ of the city after December 1, 1929.

At the time of the death of Verdecanna, section 552 of the Charter, as amended, required the Commissioner of Sanitation, as treasurer and trustee of the relief and pension fund, to grant to the widow of any member of the said fund who heretofore or hereafter * * * shall have died and who shall have been ten years in the service in said department [sanitation] or in the former department of street cleaning abolished by section six hundred and five-v of the Greater New York Charter, or both said departments, at the time of his death * * * if there shall be no child or children of such member under eighteen years of age, the sum of six hundred dollars per annum, in the discretion of said treasurer and trustees; and if there be such child or children of such member under the age aforesaid, then such sum may be divided between such widow, child or children in such proportion and in such manner as the said treasurer and trustee may direct. The right of such widow to such pension shall cease and terminate at her death or remarriage; or if she shall have been guilty of conduct which in the opinion of said treasurer and trustee renders payment inexpedient.”

The record of proceedings on the application before the Commissioner is not before us. The order at Special Term was made upon the order to show cause, the petition, answer and reply. It is alleged in the petition and admitted in the answer or otherwise seems to be conceded that the petitioner was the widow of Verdecanna, that she was not remarried when the application was made and this proceeding instituted, that there were no children of the deceased under eighteen years of age and that petitioner was not guilty of any conduct which, in the opinion of the Commissioner, rendered payment to her inexpedient. Whether the granting of relief or a pension in any case is open to discretionary action by the Commissioner need not be considered. Upon the record here, no field was left open for the exercise of discretion. Nor did the Commissioner presume to deny relief in the exercise of any discretion which may be reposed in him. Both parties maintain and respondent specifically asserts in his brief that the Commissioner denied the application, not in the exercise of discretion, but on the ground that Verdecanna had not served as a member of the Departments of Street Cleaning and Sanitation for ten years prior to his death. That was the specific and only ground for dismissal at Special Term. I think that ground for denying relief to petitioner cannot be successfully maintained on the record here.

Prior to July, 1927, Verdecanna had taken and passed a civil service examination for sweeper in the uniformed force of the Department of Street Cleaning of the city of New York and his name had been placed upon the eligible list by the Municipal Civil Service Commission for appointment to that position. Upon due certification by the Civil Service Commission, he was regularly appointed from the fist of eligibles by the Commissioner of Street Cleaning as an extra sweeper on July 15, 1927. As such and under such appointment, he served continuously to April 29, 1928, being uniformed as he was required to be like all members of the force and subject to daily call for duty. As authorized by the statute, he was called upon for service “ at such times and during such hours as the Commissioner directed. The time of his service was variable — some weeks he worked full time and during other weeks only part time. On April 28, 1928, he was notified by the Commissioner that he was thereafter a “ regular ” sweeper. There is no evidence upon which might be based a finding of temporary appointment or emergency employment within the earlier period for any purpose specified in section 536 of the Charter. But whether he was employed temporarily or not during the earlier period is not material to a decision of this case. Temporary service, if such it was, did not affect his status as a member of the relief and pension fund or the right of petitioner, as his beneficiary, to a pension. He became a member of the fund by mandate of the statute when his service began as a member of the uniformed force (Charter, § 548). Whatever the character of his appointment, not falling into the category of emergency help under section 536, he was necessarily in the uniformed force from the commencement of his service. It was not left to him to say when or whether he should become a member of the fund. The Comptroller was compelled by the terms of

section 549 of the Charter to deduct three per cent from his “ weekly or monthly pay, salary or compensation ” to make up part of the relief or pension fund. Such deductions were made on and after April 29, 1928. The Comptroller did not deduct that sum from his compensation for the period of service from July 15, 1927, to April 28, 1928, but his failure to perform his statutory duty cannot serve to defeat the widow’s right to a pension. (Matter of Tobin, 53 App. Div. 453; affd., 164 N. Y. 532.) Concededly, Verdecanna was a member of the fund at the time of his death. It must be held, as matter of law, that he was in the service of the department more than ten years before his death. Under Charter section 552, as amended, those are the only conditions with which compliance must be shown on the record in the case at bar to entitle petitioner to the pension which she seeks.

The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the petition granted, with costs.

Lehman, Ch. J.

(dissenting). The petitioner-appellant is the widow of a member of the Department of Street Cleaning who died on September 1, 1937. Under the provisions of section 552 of the Charter of the City of New York, she is entitled to a pension to be paid out of the pension fund of the department if her husband had been ten years in the service in said department at the time of his death.” The decedent was appointed an “ extra sweeper ” in the department on July 15, 1927, and as an “ extra sweeper ” he reported for work every day. In April, 1928, he was notified that he was appointed a regular sweeper. He continued in that position until his death. If the ten-year period of service which would entitle the decedent’s widow to a pension began upon the appointment of the decedent as a regular sweeper, the required period had not been completed at the time of his death and the widow would not be entitled to a pension. If, however, appointment as an “ extra sweeper ” marks the beginning of the period of service, then the petitioner has a clear right to a pension. The pension fund of the department is “ for the benefit of the members of the clerical and uniformed forces of the department of street cleaning as defined by section five hundred and thirty-six of the charter, and the incumbents of such other positions in said department as have been created and not specified in section five hundred and thirty-six of the charter.” (§ 548.) Section 536 of the Charter provides that the uniformed force shall be appointed by the commissioner of street cleaning, and shall consist of * * * sweepers, not exceeding thirty-one hundred in number, * * * drivers, not exceeding sixteen hundred in number, * * * hostlers, not exceeding one head hostler to each stable and additional hostlers not exceeding one for each ten horses. * * * ” The same section further provides: “ The commissioner of street cleaning shall have power and is hereby authorized to increase the said uniformed force, from time to time, by adding to the number of sweepers, drivers and hostlers, provided the board of estimate and apportionment and the board of aldermen shall have previously made an appropriation for the purpose of permitting such increase. The annual salaries and compensations of the members of the uniformed force of the department of street cleaning shall not exceed the following:' * * * sweepers, seven hundred and twenty dollars each.” It is clear, and the petitioner-appellant does not contend otherwise, that the decedent became one of the sweepers not exceeding 3,100 in number, except as such number may have been increased after an appropriation was made by the Board of Estimate for the purpose of permitting such an increase, and became entitled to an annual salary of $720 only at the date of his appointment as a “ regular ” sweeper in April, 1928. In another part of the same section there is a provision that any person registered or eligible to appointment as a driver, or as a sweeper, may be temporarily employed at any time as an extra driver or sweeper to fill the place of a driver or sweeper who is suspended or temporarily absent from duty from any cause. The rate of compensation for such extra drivers or sweepers shall be two dollars per day, and the driver or sweeper whose place is so filled shall not receive any compensation for the time during which he is so absent from duty or his place is so filled, unless such injury or illness was caused by service in the department.” Authority for the employment of the decedent as extra sweeper is derived from that provision. That authority is expressly limited to temporary employment upon a per diem basis, and the problem presented upon this appeal is whether a person so employed is an appointed member of the uniformed forces of the department as defined in section 536.

Men employed as extra drivers or extra sweepers are, as I have pointed out, not included in the number of drivers ” or sweepers ” who by the express terms of the statute are included in the uniformed force. Not only is the employment temporary, but the services performed and paid for are necessarily intermittent or occasional. An extra driver or sweeper serves only when he is assigned to fill the place of a regular employee who is suspended or temporarily absent from duty.” Temporary employment calling for intermittent service cannot mark the beginning of the period of ten years of service which is required before the widow of the employee may receive a pension.

An extra driver or sweeper temporarily employed to fill the place of a driver or sweeper who is temporarily absent is not included in the class of uniformed force of the Department of Street Cleaning as defined in section 536; and other sections of the Charter demonstrate that such temporary employees were not intended to share in the benefit of the relief and pension fund of the department. The Comptroller is required to deduct three per cent of the weekly or monthly pay, salary or compensation ” of each member of the department who is entitled to share in the benefit of the fund and to pay the amount so deducted into the fund. In this case such deductions began only when the temporary employment was terminated by permanent appointment. A failure by the Comptroller to make such deduction earlier if it was Ms duty to do so would, I agree, not in itself constitute a ground for denying to the petitioner a right conferred upon her by statute. Here, however, the statute placed no such duty upon the Comptroller. The temporary employee did not receive “ weekly or montMy pay, salary or compensation.” He received per diem compensation for occasional days’ work. The statute does not provide or contemplate that deduction should be made from the per diem pay of an employee whose service is temporary, intermittment, or occasional, nor does it contemplate that such a person should share in the benefit of the pension fund.

For these reasons the order of the Appellate Division . should be affirmed.

Finch, Conway and Desmond, JJ., concur with Rippey, J.; Lehman, Ch.'J., dissents in opimon in wMch Loughran and Lewis, JJ., concur.

Order reversed, etc.


author: Lehman, Ch. J. Rippey, J.

text:
    In the Matter of the Accounting of May R. Kelly et al., as Executors of Peter A. Kelly, Deceased, Respondents. Mary C. Kelly et al., Appellants.

      Argued January 9, 1941;
    decided March 6, 1941.

      Thomas S. Shea for appellants.

      Charles W. U. Sneed for respondents.
   Lehman, Ch. J.

The decedent agreed to pay to his wife “ for the support and maintenance of her son, John J. Kelly, the sum of $100, monthly, just so long as the boy shall remain in college; the said payments to commence as of the date June 1, 1930.” In accordance with that agreement, it was provided in the decree of divorce that the defendant do pay to the petitioner for the support and maintenance of the son of the parties to this suit, John J. Kelly, the sum of $100 monthly as long as the said son shall continue to be a student at college said payments should commence as of the first day of June, 1930, that said payment should be in lieu of and in satisfaction of all claims for alimony or support of the petitioner.” Regardless of whether or not the Court of Chancery of New Jersey retained power to amend that provision in the decree of divorce, we agree with the determination of the courts below that the decedent’s estate must pay any sum due and unpaid in accordance with the terms of the obligation imposed upon the decedent with his consent. The question remains whether the decedent was under any obligation to pay $100 a month after his son received a degree upon graduation from Yale College which he entered in the autumn of 1930, and from which he graduated in June, 1934.

The word college ” is not a word of art which, by common understanding, has acquired a definite, unchanging significance in the field of education. Its meaning varies with its context. Though at times it is used to denote any institution of higher learning, including institutions for professional or post-graduate study, it is frequently used, perhaps I should say ordinarily used, in this country, to denote an “ undergraduate ” school for instruction in liberal arts having a course of study commonly requiring four years for completion and leading to a bachelor’s degree. That is the sense in which the word is used in the rules of this court for the admission of attorneys and counselors at law. At the time the decedent assumed the obligation of paying $100 per month for the support of his son “ just so long as the boy shall remain in college,” the boy was about to enter Yale College. Yale College is the name commonly applied to the undergraduate department of Liberal Arts of Yale University. Here the courts below have unanimously found that the decedent’s obligation was intended to be confined to the period when the “ boy ” continued a four-year undergraduate course leading to a bachelor’s degree.

The decedent did not, I think, unequivocally assume an obligation to pay $100 a month for the support of his son so long as his son might desire to continue as a student in any institution of higher learning here or abroad. The boy’s mother, as Judge Rippey points out, was a woman of substantial means, willing and able to pay expenses for the son at an English college or university, far beyond the expenses of even wealthy students at American colleges. I find here no basis for any inference that the father -contemplated that it would be “ necessary ” for the mother to pay the large amounts she chose to pay for the education of the “ boy ” even after the “ boy ” became a man, or that the sum agreed upon “ was the largest amount that the resources of the father would permit him to contract to pay” to the mother “byway of reimbursement.” At least a question of fact was in my opinion presented by the evidence and the finding of fact by the courts below is fully justified. We may not disturb that finding if there is any evidence to sustain it.

We agree that all the other questions presented upon the appeal should be determined as indicated in the opinion of Judge Rippey.

The order of the Appellate Division and the decree of the Surrogate’s Court should be modified to the extent that the claim of Mary C. Kelly for the return of the ring should be allowed and as so modified affirmed, with costs to claimant-appellant and the respondents payable out of the estate.

Rippey, J.

(dissenting in part). Peter A. Kelly, a resident of Cornwall-on-Hudson, Orange county, died on December 3, 1937, leaving a last will and testament dated October 15, 1937, in which he named his wife, May Roach Kelly, whom he married in October, 1931, and the HighlandQuassaick National Bank and Trust Company of Newburgh as executors of his estate. The will was admitted to probate on January 4, 1938, and letters testamentary were issued to those named by deceased under which they qualified as executors of his estate, entered upon the discharge of their duties and are still acting as such. The decedent left a son, John J. Kelly, the issue of a former marriage, who was born on January 2, 1913. The son’s mother was Mary C. Kelly, whom the testator had married on September 6, 1911. She was granted an interlocutory decree of divorce from testator in New Jersey on December 13, 1930, which was made final in regular course on March 14, 1931.

Mary C. Kelly filed two claims with the executors against the estate. One was for unpaid items of one hundred dollars pér month with interest claimed to be due from the deceased by virtue of the provisions of the divorce decree and the other was for the return of a diamond ring which she claimed belonged to her. Both claims were rejected by the executors and stipulation was given that determination of the claims might be made upon the final accounting. The account of the executors was filed on October 1, 1938, but contained no reference to the diamond ring. The son filed objections to the account, among which was an objection to the failure of the executors to account for the ring which he claimed to be a part of the estate of the deceased. On the hearing upon the claims and objections, May Roach Kelly asserted that the ring belonged to her by virtue of a gift from her deceased husband made shortly before his death. The claims of Mary C. Kelly were both disallowed. The objection of the son to the account on the ground that the ring belonged to the estate was sustained, the widow’s claim to ownership of the ring was overruled and the executors were required to account for the ring. Other objections made by the son were either sustained or disallowed. Otherwise the account as filed was approved. Upon appeal to the Appellate Division, the decree of the Surrogate entered upon the accounting was unanimously affirmed except in the single respect that a portion of the claim of Mary C. Kelly, disallowed by the Surrogate, was allowed by the Appellate Division. We agree with the determination made by the courts below upon all matters except those involved in the claims filed by Mary C. Kelly.

The action for absolute divorce on the ground of willful, continued and obstinate desertion was commenced by Mary C. Kelly under the laws of the State of New Jersey while both parties were residents of that State by personal service of process upon her husband within that State. It was found, as alleged by her, that she had been a bona fide resident of the State continuously for two years next preceding the commencement of the action. In such circumstances, the New Jersey statute authorizes the granting of an absolute divorce (2 Rev. Stat. ch. 50). Her then husband appeared generally by counsel although he defaulted in pleading. A stipulation was entered into by counsel in open court upon the hearing before the Special Master which, among other things, provided:

“ It is stipulated and agreed that the defendant, Peter A. Kelly will pay to the petitioner for the support and maintenance of her son, John J. Kelly, the sum of $100.00, monthly, just so long as the boy shall remain in college; the said payments to commence as of the date June 1, 1930.
“It is further stipulated that the Master shall so report and this provision may be employed in the final decree made in this cause.
“It is further stipulated and agreed that the above mentioned payments to be made by the defendant, shall be in lieu and in satisfaction of all claims of alimony or support by the petitioner.”

Jurisdictional requirements having been satisfied, after hearing and the taking of proof, the interlocutory decree of divorce was granted and duly filed with the agreement incorporated therein in the following words: “And it is further ordered, adjudged and decreed that the defendant do pay to the petitioner for the support and maintenance of the son of the parties to this suit, John J. Kelly, the sum of $100 monthly as long as the said son shall continue to be a student at college said payments should commence as of the first day of June, 1930, that said payment should be in lieu of and in satisfaction of all claims for alimony or support of the petitioner.”

The decree nisi was later confirmed by the final decree as above indicated. The first claim of Mary C. Kelly was based upon the foregoing stipulation and decrees for the sum of $11,047.50 claimed to be due to her from the deceased in monthly installments of one hundred dollars from June, 1930, to June, 1937, inclusive, with interest from the respective dates when the installments became due.

In the action for divorce, since the Court of Chancery had jurisdiction of the parties and of the subject-matter (Revised Statutes of New Jersey, [1937] vol. 1, tit. 2, ch. 50 [N. J. Stat. Annotated, tit. 2, ch. 50]), the decree is conclusive upon the parties in this State (Jones v. Jones, 108 N. Y. 415; Guggenheim v. Wahl, 203 N. Y. 390, 396, 397). The constitutional requirement that full faith and credit shall be given to the judgments and decrees of other States requires, where applicable, that such other States shall give to the decree such force and effect as it was entitled to receive, in the State in which it was rendered (Haddock v. Haddock, 201 U. S. 562, 567). Applicable alike is that requirement to judgments in actions at law and to decrees in equity and of courts of chancery (Harding v. Harding, 198 U. S. 317, 335). Consequently, respondents seek to maintain here that the New Jersey decree awarding monthly payments for the son was not enforceable in the courts of this State as the appellants seek to enforce it since, it is asserted, the provision for the payments for the support and maintenance of the son was not final but was alterable by the Court of Chancery of New Jersey in its discretion at any time (Lynde v. Lynde, 181 U. S. 183; Sistare v. Sistare, 218 U. S. 1; Yarborough v. Yarborough, 290 U. S. 202). We are not called upon to consider the point which respondents seek to raise. The Appellate Division has determined that the decree directing the monthly payments must be enforced in our courts either on the ground that it was here entitled to full faith and credit or on the ground of comity. No party adversely affected has taken any appeal to this court. Under the conditions here, if enforceable in part it is enforceable as a whole.

The Appellate Division has sustained the abstract right of Mary C. Kelly to recover on the basis of the agreement between the parties as embodied in the decree. The fact is that neither the husband in his lifetime, nor the son nor the claimant at any time, has attempted to alter the agreement or the decree. The agreement was partly performed and the decree partly complied with by the husband and never objected to or attacked. The agreement was valid under the laws of either State (Sobel v. Sobel, 99 N. J. Eq. 376; Clark v. Fosdick, 118 N. Y. 7) and was valid and enforceable everywhere until altered or changed or set aside by the parties or by a court of competent jurisdiction. It is unimportant whether the obligation of support, maintenance and education on the part of the father toward the son existed generally only during the minority of the son (Snover v. Snover, 13 N. J. Eq. 261). The obligation to support the wife continued during the husband’s lifetime and would be enforceable in any appropriate jurisdiction unless sufficiently and providently and unalterably satisfied by agreement of the parties or by duly authorized adjudication of a court. There was adequate consideration for the agreement. In this case, the agreement made by the husband and wife, subsequently embodied in the decree, was that, in lieu of alimony and support to the wife, the husband would furnish a monthly allowance toward the support and maintenance (which included education) of the son “ as long as the said son shall continue to be a student at college ” regardless of minority.

It seems to me that the lower courts have misconstrued the provisions of the agreement and decree. The son was a student at Yale College at the time the decree of divorce was entered and was graduated from that institution in 1934. The Surrogate found upon ample evidence, and the finding was approved by the Appellate Division, that the testator paid the claimant the sum of $4,075 by virtue of the obligation created. It was found by the Surrogate that such payment constituted full compliance with the terms of the decree. As a basis for such finding, the Surrogate held that he might take judicial notice that the college year did not exceed ten months and that “ there is nothing in the stipulation, nor in the circumstances of the parties having regard also to the amount of the testator’s estate that would indicate anything more than the usual four years course was intended to be covered by this stipulation.” The Appellate Division modified the finding so as to allow the claimant one hundred dollars per month for each of twelve months for each of four years. To the knowledge of the testator, his son continued his college course in Kings College, Cambridge, England, for three years after graduation from Yale and was attending Harvard University at the time of his father’s death. During the years the boy was in college, the boy’s mother, herself being of substantial means independent of his father, paid all expenses for his support, maintenance and education out of her own resources in an amount averaging between ten thousand and twelve thousand dollars per year. The stipulation and decree provided in unequivocal language that the mother should be paid the sum of one hundred dollars per month as long as the testator’s son should continue to be a student at college. Clearly, it may be inferred that it was the largest amount that the resources of the father would permit him to contract to pay for the support, maintenance and education of the son by way of reimbursement toward the large amounts which the parties contemplated would be necessary for the mother to pay for that purpose. No circumstance appears warranting any construction that a limitation to a specific four-year college course was intended. The provision clearly meant continued attendance at college and it must be presumed that the testator and the claimant had in mind the fact that more than four years may be required in preparation for many professions and vocations and for specialization in many fields leading to academic and higher degrees.

The conclusion follows that the terms of the agreement between the parties as embodied in the stipulation and divorce decree required the Surrogate to hold that claimant was entitled to receive from the estate of the deceased such an amount as would total the monthly payments provided for from June 1, 1930, for twelve months each year, to June, 1937, in accordance with the claim, less $4,075 which has been found to have been paid to her by the testator under his aforesaid obligation to pay, with interest upon the monthly items unpaid as they became due.

The ring in question consisting of a valuable diamond in a platinum white gold setting was purchased by Mary C. Kelly with her individual funds in 1928. She purchased the stone and had it placed in a gypsy ” setting especially planning to give it to her son. She attempted to deliver it to him but he refused to accept delivery on the ground that it was “ too flashy.” There was no delivery to the son, actual, constructive or symbolical, or to any one else for or on his behalf, in fact or in law, and acceptance by him could not be implied. Anything short of delivery strips the attempted gift “ of the quality of completeness which distinguishes an intention to give, which alone amounts to nothing, from the consummated act, which changes the title. The intention to give is often established by most satisfactory evidence, although the gift fails ” (Beaver v. Beaver, 117 N. Y. 421, 429; see, also, Matter of Van Alstyne, 207 N. Y. 298). The son never, in fact, accepted the ring. There is no evidence that he ever wore it or had it in his possession. He has asserted here that the ring should be accounted for by the executors and makes no personal claim to title to the property.

At the time of the attempted gift to the son, the claimant and the deceased were living together as husband and wife with the son who had not then entered college. The ring was the separate property of the claimant. She had title to it. The Surrogate has found that the testator wore the ring for a number of years and that it was in the possession of the deceased until shortly before his death when, during his last illness, he handed it to his wife, May Roach Kelly, for safekeeping. The widow makes no assertion that she, at any time, came into its possession from claimant. There is neither testimony nor finding as to when or under what particular circumstances the deceased came into possession of the ring. The Surrogate held that the fact that the deceased had possession of the ring was sufficient proof of a gift of the ring to him and that decision has been affirmed by the Appellate Division.

The mere fact, if it were a fact, under the circumstances disclosed at the time of the attempted gift to the son, that the ring was then left in the possession of the deceased, gave rise to no presumption of any intent on the part of the claimant to give the property to the husband or to divest herself of title thereto. There is no evidence that she then left the ring in his possession. But had it appeared that claimant then left the ring in the possession of the husband while they were living together as husband and wife at the same place and under the circumstances here disclosed, that possession would be insufficient to establish a valid gift to him (Brink v. Gould, 7 Lans. 425) in the absence of proof of a perfected gift. If there were any change at all in the status of the property in the mere circumstance that she let the husband take possession of it and use it, it would amount to nothing more than that the custody thereof was joint and joint custody negatives any idea of a gift (Young v. Young, 80 N. Y. 422). No presumption can arise’ that the ring was then delivered into the possession of the husband with intention on the part of the claimant to part with title thereto from the mere fact, as found, of subsequent possession or use by the husband (Jackson v. Kraft, 186 Ill. 623; Chadbourn v. Williams, 45 Minn. 294; Stickney v. Stickney, 131 U. S. 227). Had there been evidence that the claimant delivered possession of the ring to the husband, though he subsequently continued to hold possession and used the ring under the circumstances here disclosed, his status then could have been only, at the best, that of the agent of claimant to deliver the ring to the son or of custodian of the ring for the son’s benefit. There is no evidence that the deceased at any time during his lifetime claimed that the ring belonged to him. On the contrary, within a short time before his death he asked his son when he was going to take and wear the ring. “ The law never presumes a gift ” (Matter of Bolin, 136 N. Y. 177, 180). • To establish that a gift had been made, the burden rested upon respondents to show by the clearest evidence each and every element essential to establish that a gift was made (Boyd v. v. De La Montagnie, 73 N. Y. 498; Shuttleworth v. Winter, 55 N. Y. 624, 629; Doty v. Willson, 47 N. Y. 580; Farmer’s Executor v. Farmer, 39 N. J. Eq. 211). To establish a valid gift inter vivos, there must have been an intention to give, delivery of the thing given to the donee pursuant to that intention and acceptance of the gift by the latter {Beaver v. Beaver, supra). So far as testator is concerned, there is not a shred of evidence in this case to establish the presence of any one of those essential elements. It would shock the sense of right, if a possession which was, at most, only permissive, while entirely consistent with the title of another, should silently bar that title.

The order appealed from should be modified so as to provide for the allowance of the two claims of Mary C. Kelly to the extent'indicated in this opinion, with costs to her in this court and in the' Appellate Division, and, as so modified, affirmed and the matter remitted to the Surrogate to enter a modified decree accordingly, with costs thereon in the Surrogate’s Court, all costs payable out of the estate.

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

Ordered accordingly.


author: Lehman, Ch. J.

text:
    Emma A. Braunworth, Appellant, v. Charles A. Braunworth, Respondent.
    Submitted January 10, 1941;
    decided March 6, 1941.

      Abram M. Frumberg and Jacob Freed Adelman for appellant.

      Charles H. Lane and Sidney J. Loeb for respondent.
   Lehman, Ch. J.

In an action for divorce, the plaintiff made a motion for temporary alimony and counsel fee. The parties, in 1913, entered into a separation agreement whereby the defendant agreed to pay to the plaintiff the sum of twenty dollars per week for her support and the support of the children of the parties. The defendant has paid that sum regularly and does not dispute his obligation under that agreement. The plaintiff, upon the motion for temporary alimony, urged that consent to accept the amount fixed by the separation agreement had been extorted from her and that the defendant is abundantly able and should be compelled to pay a much larger sum for her support, though now the children are married.

The court at Special Term granted to the plaintiff as alimony the amount which the parties had by their agreement fixed. Both parties appealed to the Appellate Division and upon the cross-appeals the order was reversed, two of the justices dissenting, and the motion for temporary alimony was denied. Leave to appeal was granted to the plaintiff by the Appellate Division and the following questions certified:

1. In an action for divorce brought by a wife against a husband, may the Supreme Court order the payment of temporary alimony where there is a valid and subsisting separation agreement between the parties providing for a stipulated sum, to be paid weekly for the wife’s support, which agreement is being performed by the husband according to its tenor?
“2. On the record in this case should the court, at Special Term, have granted plaintiff’s motion for alimony pendente litef

We have said in Goldman v. Goldman (282 N. Y. 296, 301) that so long as a contract fixing the amount which a husband should pay in satisfaction for his marital obligations “ remains unimpeached, the court will not compel the husband to pay to the wife for her support a sum greater than the wife agreed to accept, at least where such sum is not plainly insufficient.” The Appellate Division held that under the rule there stated the court could not make an order directing the defendant to pay to his wife more than the amount fixed by the agreement. The difference of opinion in that court related only to the question of whether the plaintiff was entitled to an order directing the defendant to pay as alimony the amount which he had agreed to pay and which he was paying to the plaintiff for her support. A majority of the court held that “ even if the power to make it exists, we see no necessity for such an order, for the wife is receiving support which must be deemed adequate so long as the agreement remains a binding contract. Aside from the question of necessity, the right to make such provision would not seem to exist when the agreement is being performed according to its tenor.” (260 App. Div. 113, 114.)

Whether temporary alimony should be granted in a divorce action and the amount of alimony, if granted, rests ordinarily in the discretion of ;fche court. Upon an appeal from an interlocutory order this court may not review the court’s exercise of discretion even where the Appellate Division has reversed a finding in that regard of the court below. (Cf. Civ. Prac. Act, § 589.) Only if it appears that the temporary alimony was denied solely on the ground that the court was without power to grant it would a question of law be presented which we could review.

The order of reversal by the Appellate Division does not indicate that the modification was not upon a question of fact and we do not apply to interlocutory orders the same presumption as to the grounds of reversal which we are expressly commanded to apply when there has been a reversal of a judgment (Civ. Prac. Act, § 602) or which, without express command, we apply to final orders which are not discretionary. (Gang v. Gang, 253 N. Y. 356.) The first question which has been certified relates to the power of the court and is a question of law. We may answer that question of law only if it determines “ as a matter of law whether the order should have been granted or denied.” Otherwise the appeal must be dismissed. (Smith v. Brown Brothers Co., 196 N. Y. 529.) By necessary implication this court, in proper case, has found in the certification by the Appellate Division of a question an indication that denial of relief was based solely on the question of law and was not the result of the exercise of discretion. (Cf. Drake v. Herrman, 261 N. Y. 414; Cohen on The Powers of the New York Court of Appeals, § 83.) That is possible, however, only where the opinion or the certification of a question of fact, in addition to the question of law, does not show that the determination was not based solely on the question of law. (Cf. Finnegan v. Buck, 230 N.Y. 512.) In this case the opinion states unequivocally that even if the court had power to grant temporary alimony it should refuse to do so in the exercise of its discretion and, in the light of the opinion of the court and the certification of the first question, we cannot construe the second certified question as a question of law.

It follows that the appeal should be dismissed, without costs.

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

Appeal dismissed.


text:
    Josephine Parkas, Appellant, v. Peter Parkas, Respondent.
    Argued January 9, 1941;
    decided March 6, 1941.

      Frederick E. Klein for appellant.

      Paul P. Rao and Sybil Phillips for respondent.
   Lehman, Ch. J.

The plaintiff has lived separate from the defendant, her husband, since about January 1, 1934. By written contract dated January 15, 1934, the defendant agreed to pay to the plaintiff $8,680 “ payable in the manner and in the amounts hereinafter stated, to wit: (a) The sum of $4,000 in cash, receipt whereof is hereby specifically acknowledged, (b) The balance of $4,680 in three hundred and twelve equal weekly installments of $15.00.” On her part, the plaintiff agreed that “ she will accept and does hereby accept the said gross sum of $8,680 payable in the manner hereinbefore provided, in full and final settlement of any and all claims she now has, or at any time in the future may have, for - her support and maintenance and allowance to her by way of alimony, counsel fees, or any other allowance for her support and maintenance.” There is dispute as to whether the defendant did in fact pay the sum of $4,000, receipt whereof was specifically acknowledged ” in the contract, but concededly he paid the sum of $15. per week for six years or 312 weeks after January 15, 1934.

In February, 1940, the plaintiff began an action for divorce against her husband and in the complaint asked that the agreement of January 15, 1934, be annulled, canceled, set aside and declared void on the ground that it is against public policy. Then she moved for temporary alimony and counsel fee. The court granted the motion and directed the defendant to pay to the plaintiff the sum of $50 per week for her support during the pendency of the action and a sum fixed by the order as a counsel fee. The defendant appealed from that order to the Appellate Division and upon that appeal the order was modified by striking out the provision for temporary alimony and as so modified affirmed, without costs. The provision for counsel fees was not disturbed.

The plaintiff appeals from the order of modification by permission of the Appellate Division which has certified the following questions:

(1) Did Special Term have power to fix plaintiff’s temporary alimony on June 24, 1940, as provided for in said order?
(2) Can defendant review the order of April 18, 1940, granting plaintiff temporary alimony, on his present appeal from the order of June 24, 1940, fixing the amount of temporary alimony, defendant having failed to appeal from the order of April 18, 1940?
(3) On all the facts presented was plaintiff entitled to temporary alimony? ”

The Appellate Division wrote no opinion, other than “ See Braunworth v. Braunworth (260 App. Div. 113),” from which this court could determine whether the modification was made in the exercise of discretion or as matter of law on the ground that the court was without power to grant alimony where a wife had agreed to release her husband from the obligation of support upon payment of a stipulated sum.

The question of law presented in the courts below in this case is different from the question presented in Braunworth v. Braunworth (supra), or in Goldman v. Goldman (282 N. Y. 296). There, at the time the wife asked the court to direct her husband to furnish support she was actually receiving from him at stipulated times the sums which they had agreed were reasonably sufficient for that purpose. Here, when the plaintiff asked for alimony, the stipulated weekly payments were completed, which the defendant had agreed to make and which the plaintiff had agreed to accept in “ full and final settlement ” of any claims for support and maintenance which she might have. At that time this plaintiff, according to her affidavits, was receiving no support from her husband and had no moneys which she could use for that purpose. Upon that motion, husband and wife made unsavory charges and counter charges against each other concerning mink coats ” supplied to blonde ladies, ’’concerning a “ Mexican divorce ” obtained by mail, concerning the relations of both parties to their alleged paramours. Though the court could not upon that motion determine questions of fact which affect the validity of the separation agreement, and though we assume that upon that motion the separation agreement stands unimpeached, the court was called upon to determine whether it had power to compel the defendant to support his wife upon proof that she is presently without means of support; and if the court had such power the court would still be called upon to decide whether, upon the facts in this case, the wife had shown that she should receive support pending trial of the action against her husband. The first question is one of law; the second question is one of fact and involves the exercise of the discretion of the court.

The court at Special Term could not have made its order granting alimony unless it had decided both that the court had such power and that in the exercise of its discretion it should grant the motion. The modification of the order by the Appellate Division and its denial of alimony might be based on a conclusion of the court that, as matter of law, power was lacking or on its conclusion that in the exercise of discretion the motion should be denied. It has certified to us both questions and though the question of law presented is different from the question of law presented in Braunworth v. Braunworth (supra), the same reasons which constrain the court to dismiss the appeal in that case (decided herewith, 285 N. Y. 151) constrain us to dismiss this appeal.

The appeal should be dismissed, without costs. (See 285 N. Y. 743.)

LoiTGHBAJsr, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur’.

Appeal dismissed.


author: Lehman, Ch. J. Desmond, J.

text:
    In the Matter of the Accounting of Wirt P. Marks, as Temporary Administrator of the Estate and as Executor of Grace B. Walters, Deceased. Margaret A. Weldon, Appellant; Wirt P. Marks, as Administrator and Executor, et al., Respondents.

      Argued January 10, 1941;
    decided March 6, 1941.

      William Joachim and Morris Kleinman for appellant.

      Albert Stickney, Arthur W. Siegrist and Henry A. Fenn for Wirt P. Marks, as administrator and executor, respondent.

      Louis Lempel for Richard C. Bradley, respondent.

      Frank W. Harris for Robert E. Walters et al., respondents.
   Lehman, Ch. J.

The will of the testatrix, Grace Bradley Walters, written in her own handwriting and showing on its face that it was prepared and executed without the advice of a lawyer, was witnessed by Margaret A. Weldon and Robert E. Walters. The testatrix controlled, through stock ownership, the Edgar B. Walters organization, Inc., and was active in the conduct of the business of that corporation. In her will she bequeathed “ the business of Edgar B. Walters organization to the help now running same 5/27/35 with the except of accountant Mr. Martucci.” There is dispute as to what persons are included in the group intended to share in the bequest and also as to whether the beneficiaries take the bequest as a class or as individuals. We agree with the construction placed upon the will by the courts below. Both attesting witnesses, Margaret A. Weldon and Robert E. Walters, were employed by the corporation, participated in the running of its business and there can be no doubt that both were intended by the testatrix to share in the bequest of the testatrix. The courts below have held, however, that the legacies to both are void under the provisions of section 27 of the Decedent Estate Law (Cons. Laws, ch. 13). We are not agreed that Margaret A. Weldon is to lose her legacy because she was an attesting witness.

The Decedent Estate Law provides that for the valid execution of every last will and testament of real or personal property “ there shall be at least two attesting witnesses, each of whom shall sign bis name as a witness, at the end of the will, at the request of the testator.” (§ 21.) The statute further provides that “ If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall be made to such witness, and such will can not be proved without the testimony of such witness, the said devise, legacy, interest or appointment shall be void, so far only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made.” (§ 27.) The question presented here is whether the will of the testatrix could not, within the meaning of the statute be proved without the testimony ” of the witness Margaret A. Weldon.

The will, in fact, was proved without the testimony of that witness. She was a resident of the State of New York at the time the testatrix died. She left the State thereafter and lived in Connecticut until after the will was probated and we assume that her purpose in leaving the State of New York was to avoid compulsion to give testimony upon the probate proceedings and in that manner to preserve her right to take the bequest made to her. If the testimony of both attesting witnesses were necessary for the probate of the will, none of the legatees described in the will, including the witnesses, would have been entitled to take under the will until, by production of the testimony by both witnesses, the will could be probated. The successful avoidance by a witness of compulsion to give testimony would in such case injure all the legatees and would result in no benefit to the recalcitrant witness. The Surrogate’s Court Act, however, provides that, in some circumstances, the Surrogate may dispense with the testimony of a subscribing witness and that the will can be probated, then, upon the testimony of a single witness:

Absent Witnesses to be Accounted for; Dispensing With Testimony; Commission; Proof of Handwriting.
The death, absence from the state, or incompetency by reason of lunacy, or otherwise of a subscribing witness required to be examined as prescribed in this or the last section, or the fact that such witness cannot, with due diligence, be found within the state, or cannot be examined by reason of his physical or mental condition may be shown by affidavit or other competent evidence, and when so shown to the satisfaction of the surrogate, the surrogate may by the decree or by an order in writing, or by an order entered in the minutes dispense with his testimony; or in a case where such witness is absent from the state and it is shown that his testimony can be obtained with reasonable diligence, the surrogate may, in his discretion, and shall upon the demand of any party, require his testimony to be taken by commission. Where the testimony of a subscribing witness has been dispensed with as provided in this section, and one subscribing witness has been examined, the Will may be admitted to probate upon the testimony of such subscribing witness alone.” (§ 142.)

These statutory provisions were successfully invoked in this case and the will was probated without the testimony of the absent witness. One subscribing witness gave testimony as required by statute and no person sought an order to compel the other witness to give testimony to be taken by commission. Since the will was in fact probated without the testimony of the second witness it is clear that under the letter of the law the legacy made to the absent subscribing witness, whose testimony was not required, is not void.

It is said, however, that construction of the statute according to its letter would permit a subscribing witness to obtain an advantage by avoiding service of process and thus the law would reward the successful evasion of a duty imposed by law. The purpose of the statute is first, to render subscribing witnesses competent, who would not have been so otherwise; and second, to guard against fraud in the preparation and execution of wills.” (Du Bois v. Brown, 1 Dem. 317; affd., 31 Hun, 166.) If a witness to the execution of a will were permitted to benefit by its probate, interest might be an inducement to fraud. On the other hand, the testamentary intent of a decedent expressed in a will according to law should not be thwarted where the will is actually proved without the testimony of an interested witness. The statute was not intended to outlaw gifts to a witness whose testimony is not required for the probate of the will. The Legislature did not intend to render unlawful a testamentary gift to a witness. On the contrary, it confined invalidity of such a gift to those cases where exclusion of a witness by reason of interest would prevent probate of the will. (Caw v. Robertson, 5 N. Y. 125.) That is not the case here. We apply the law as it is written. In this case to apply it otherwise would result in thwarting the intention of the testatrix to confer a benefit upon this witness without in any way promoting the purpose of the statute.

The decree of the Surrogate and the order of the Appellate Division should be modified to provide that the legacy to the appellant, Weldon, is not void.

The order of the Appellate Division and the decree to the Surrogate’s Court should be modified, in accordance with this opinion and as so modified affirmed, with costs in all courts to each party filing a separate brief, payable out of the estate.

Desmond, J.

(dissenting). When first offered, this will could not have been probated without the production and examination of the two subscribing witnesses as both were at that time within the State and competent and able to testify. (Surr. Ct. Act, § 141.) The legacy to each witness was, therefore, void. (Dec. Est. Law, § 27; Caw v. Robertson, 5 N. Y. 125.) The legacy to the subscribing witness Weldon could not be validated by her own act of leaving the State of New York until after the will was probated, notwithstanding that the will was eventually probated without her testimony in accordance with the provisions of section 142 of the Surrogate’s Court Act. Analogy is to be found in the unsuccessful attempt of a subscribing witness to convey a bequest to a third person in order to qualify as a witness. (Jackson v. Denniston, 4 Johns. 311.) Further, her flight from the jurisdiction of the court made it impossible for the Surrogate to make the inquiry intended by section 144 of the Surrogate’s Court Act as to all the facts and circumstances, the genuineness of the will and the validity of its execution. To allow her now to collect her legacy would destroy the effectiveness of section 27 of the Decedent Estate Law and would point out a simple and easy means to produce the very result prohibited by the statute, the payment of a legacy to one of two subscribing witnesses whose testimony is necessary to prove a will.

The order of the Appellate Division should be affirmed. (See 285 N. Y. 412.)

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

Ordered accordingly.