text:
    In the Matter of the Accounting of William P. Hale, as Executor of and Trustee under the Will of Justus Miller, Deceased. James S. Miller et al., Appellants; Mary E. Hale, as Executrix of William P. Hale, Deceased, Respondent.

      (Argued September 29, 1931;
    decided November 17, 1931.)

      James Farrell for James S. Miller et al., appellants.
    The Surrogate’s Court had no jurisdiction over the undistributed trust fund or over the income therefrom. (Matter of Weaver, 156 App. Div. 927; Matter of Lee,
      220 N. Y. 532; Schuehle v. Reiman, 86 N. Y. 270; Hopkins v. Kent, 145 N. Y. 363.) The Surrogate’s Court had no jurisdiction over the rents of the real estate, nor over the proceeds of sale of the real estate. (Watkins v. Reynolds, 123 N. Y. 211; Levy v. Levy, 33 N. Y. 97; Real Prop. Law, § 109; Hopkins v. Kent, 145 N. Y. 363.) That part of the Supreme Court judgment which provides that the plaintiffs therein retain the control and management of all the real estate comprised within the trust estate was wholly unauthorized and was illegal and void. (Clapp v. McCabe, 155 N. Y. 525; Watkins v. Reynolds, 123 N. Y. 211; Minion v. Warner, 238 N. Y. 413.)

      William C. Gordon for Herbert Baucus et ah, appellants.
    The Surrogate’s Court after termination of the trust, followed by the accounting and judgment of judicial settlement in the Supreme Court, had no jurisdiction to hear and determine the proceeding. (Real Prop. Law, § 109; Pers. Prop. Law, § 11; Watkins v. Reynolds, 123 N. Y. 211; Cussack v. Tweedy, 126 N. Y. 81; Embury v. Sheldon, 68 N. Y. 227; Matter of Baldwin, 120 Misc. Rep. 226; Surr. Ct. Act, § 258; Matter of Finck, 103 Misc. Rep. 526; Matter of Van Kleeck, 95 Misc. Rep. 40; 177 App. Div. 917; Matter of Allen, 111 Misc. Rep. 93; 202. App. Div. 810; 236 N. Y. 503.) In any event, the Surrogate’s Court had no jurisdiction of the rents of the real estate which formed no part of the trust estate since the death of the life tenant in 1919, or of the proceeds of sale of real estate forming no part of the trust and sold by the trustee without authority, after the termination of the trust, nor has it jurisdiction of the undistributed trust fund, or the increments thereof. (Matter of Overton, 89 Misc. Rep. 59; Matter of Saurez, 158 N. Y. Supp. 140; Matter of Bolton, 157 N. Y. 393.) The trustees, upon the termination of the trust, having invoked the jurisdiction of the Supreme Court where all their previous accountings were had, and that court having exercised its jurisdiction and by its decree having finally judicially settled their accounts and directed the distribution and the filing of receipts in that court showing payment of the balance on hand to those entitled thereto, and allowed the commissions and all expenses of distribution, legal or otherwise, which have been paid, the petitioner cannot now, by reason of his failure to comply with that decree, invoke the jurisdiction of the Surrogate’s Court. (Matter of Gary, 77 Mise. Rep. 602; 155 App. Div. 946; Schuehle v. Reiman, 86 N. Y. 270; Wegman v. Childs, 41 N. Y. 159; Matter of Ayrault, 81 Hun, 107; 146 N. Y. 389.) The provision in the Supreme Court judgment permitting trustees to retain control and management of the real estate is unauthorized and ineffectual to continue the trust. (Civ. Prac. Act, § 479; Simonson v. Blake, 12 Abb. Pr. 331;. Mathot v. Triebel, 102 App. Div. 426; Clapp v. McCabe, 155 N. Y. 525; Manhattan Beach Co. v. Bonner, 123 Misc. Rep. 441.)

      Michael D. Reilly and Herbert D. Hamm for respondent.
    The appellants are estopped from questioning the validity of the judgment of the Supreme Court) the propriety of the continued administration of the trust properties by the trustees, or their right to further account as to their administration of such properties. (Houghton v. Thomas, 220 App. Div. 415; Giles Dyeing Machine Co. v. Klander-Weldon Dyeing Machine Co., 233 N. Y. 270; Hamilton v. Munice, 182 App. Div. 630; Muller v. Naumann, 85 App. Div. 337; Kent v. Quicksilver Mining Co., 78 N. Y. 159; Matter of Watson, 213 N. Y. 177; Matter of Parker, 118 Misc. Rep. 121; 204 App. Div. 876; 236 N. Y. 583; Matter of Leverich, 135 Misc. Rep. 774.) In any event the judgment of the Supreme Court was warranted under the pleadings. '(Livingston v. Van Rensselaer, 6 Wend. 63; Lightfoot v. Davis, 198 N. Y. 261; Dammert v. Osborn, 140 N. Y. 30; Bloomquist v. Farson, 222 N. Y. 375; Phillips v. West Rockaway Land Co., 226 N. Y. 507;
      Crounse v. McVickar, 207 N. Y. 213; Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 477.) The Surrogate’s Court had jurisdiction to take the accounts of the surviving trustees. (Surr. Ct. Act, § 40, subd. 3; § 261, subd. 3; Matter of Runk, 209 N. Y. 447; Matter of Busche, 227 N. Y. 85; Lawrence v. Littlefield, 215 N. Y. 561; Miller v. Peck, 226 App. Div. 713.) The trustees had power to act, following the death of the life beneficiary and the Supreme Court judgment. (Matter of Thomas, 254 N. Y. 292; Matter of Busche, 227 N. Y. 85.) The allowance of commissions on income received and paid out after the interlocutory accounting in the Supreme Court was proper, the amount thereof and of other allowances being in the discretion of the Surrogate so long as not in excess of the statutory percentage. (Matter of Thomas, 254 N. Y. 292; Matter of Busche, 227 N. Y. 85.)

      Charles Grosberg, as special guardian for Donald 0. Baucus.
    The trustees had power to act following the death of the life beneficiary and the Supreme Court judgment. (Matter of Thomas, 254 N. Y. 292.) The conduct of the remaindermen indicates at least acquiescence and consent that the trustees should continue to act in their official capacity; (Matter of Miller v. Peck, 226 App. Div. 713.)
   O’Brien, J.

By the sixth clause of his will Justus Miller provided that the residue of his estate should be held in trust and that the income therefrom should be paid in equal shares to his widow and to his son during their lives. In the event that the son without issue should predecease the widow, he devised and bequeathed by the seventh clause one-half of the trust estate to the widow and the other half to such named nephews and nieces as might survive the son. Among the four executors and trustees appointed by the will were William P. Hale and the widow, Elizabeth Miller. In 1897 the will was probated before the Surrogate of Rensselaer county. Shortly after the death of the son without issue in 1919, the three surviving trustees, including the widow and Mr. Hale, instituted an action in the Supreme Court for a judicial settlement of their accounts. ' The judgment in that action settled and allowed the accounts to July 24, 1919, directed the payment of certain commissions and expenses and also directed the distribution of the estate among the widow and the nephews and nieces. At the date of entry of that judgment the trust estate consisted of mortgages on real estate, several parcels of real estate which had been purchased on foreclosure sales by the trustees, and several parcels of real estate which had been owned by the testator. Reciting the fact that the trust estate included a large number of parcels of real property and that the distributees thereof were willing that such property should remain under the control and management of the trustees for an indefinite time, the judgment decreed that the trustees should retain control and management of the real estate until the further order of the court and that they should account, whenever required, for the principal of the fund remaining in their hands. After the entry of that judgment, the three surviving trustees liquidated the mortgages and made distribution on account to the widow and to the nephews and nieces. The- widow died in 1922, and the- second trustee in 1924, leaving Mr. Hale the sole survivor. Until the death of Mrs. Miller, the three trustees continued to collect the rents from realty which had belonged to the testator. They performed the same acts in relation to the real estate which had been purchased on foreclosure and which was regarded as personalty. After the widow’s death and until the death of the second trustee, the two survivors managed the property. Subsequent to 1924 Mr. . Hale alone administered the estate. In 1928 he filed in the Surrogate’s Court an account from July 24,1919, to March 31, 1928, and petitioned for a final judicial settlement and for discharge as executor and trustee. His petition was granted, certain of his accounts were allowed and he was discharged. The Appellate Division has unanimously affirmed the decree on the law and the facts. In all courts, the appellants, residuary legatees under the will of the widow who was owner of one-half of the trust fund, have raised the issue of the Surrogate’s jurisdiction.

That the trust erected by the sixth clause in the will terminated with the death of the life tenant in 1919 is certain. (Real Prop. Law; Cons. Laws, ch. 50, § 109; Pers. Prop. Law; Cons. Laws, ch. 41, § 11.) The testator’s intent to suspend the power of alienation only during the life of his son is clear. Upon the termination of the trust, the duty remained with the testamentary trustees, as such, to divide the personal property and to distribute it. Included within the fund of personal property was the real estate which had been purchased by the trustees on mortgage foreclosure. Until the act of division and distribution should be fully performed, the administration of the trust would not be complete. Even if the title to this personalty had vested in the beneficiaries under the will and had been wholly severed from the trustees, the duty to divide and distribute continued. (Matter of Thomas, 254 N. Y. 292.) This duty cast by the testator upon the trustees was part of a function attaching to them in their capacity as testamentary trustees. It arose from the obligation which they assumed when they accepted the responsibility imposed by the will. The judgment of the Supreme Court in 1919 did not add to it. Irrespective of that judgment, they were bound not only to divide and distribute the personalty but also to account for the income accruing during that process of administration. That the duration was long does not alter the fact that, concerning personal property at least, they retained their posts as trustees under the testament. Since their obligation to account in some capacity is conceded and since they remained, as we hold, testamentary trustees in respect to personalty, one of the forums where jurisdiction resided was the Surrogate’s Court.

In respect to the real estate which had been owned by the testator and which by no process of reasoning can be regarded as personalty, the Surrogate was without jurisdiction concerning expenditure, income, commissions or any other item relating to it. Upon the termination of the trust, title to that realty immediately vested in the widow and the other beneficiaries mentioned in the will. (Watkins v. Reynolds, 123 N. Y. 211; Townshend v. Frommer, 125 N. Y. 446, 461.) The trustees no longer possessed a right under that instrument to perform any act of administration in respect to such real property. The trust had ended and no court was warranted in extending the term. That part of the judgment in the Supreme Court action which assumed to bestow upon retiring trustees of a terminated trust a continuing faculty as testamentary trustees to control and manage the real estate for an indefinite duration is unauthorized. There was no answer in that action and the complaint made no demand for the extraordinary relief granted. The result is worse than irregular. It is in contravention of section 479 of the Civil Practice Act. (Clapp v. McCabe, 155 N. Y. 525, 532, 533.) Neither by acquiescence nor by express consent of all beneficiaries under the will could a court acquire any such arbitrary power of interference with the command of the testator. The result follows that the Surrogate was dealing with the accounts of one who, whatever may have been his functions between 1919 and 1928 in respect to real estate, was no longer a testamentary trustee.

The personal representative of Mr. Hale, who has died since the Surrogate’s decision in this proceeding, is bound to account in the Supreme Court for his management subsequent to July 24, 1919, of the real estate which had been owned by the testator. In such an action the evidence may warrant a finding that during these years Mr. Hale by consent or acquiescence was acting as a trustee of some description other than a testamentary • trustee or was an agent for those who were vested with title to the realty. Acquiescence is a question of fact. (Myers v. Bolton, 157 N. Y. 393, 400.) Appellants could not by acquiescence cause an extention of the trust beyond the term prescribed by the testator. They could, however, by acquiescence authorize or ratify the acts of Mr. Hale in managing their own property for their own benefit. Whether his accounts shall be settled in the same amount as was allowed in the present proceeding depends upon the discretion of the Supreme Court. Neither section 285 of the Surrogate’s Court Act nor section 1548 of the Civil Practice Act in respect to the payment of commissions will bind the court. Although the terms of Justus Miller’s will do require the trustees to collect rents and manage real estate, those fiduciaries subsequent to 1919 no longer acted under those provisions of that instrument and, therefore, the Surrogate’s Court Act has no application. The Civil Practice Act refers only to commissions to trustees of an expressed trust. After the judgment of 1919 Mr. Hale and his associates were at most, as the Supreme Court may perhaps find, nothing more than trustees by acquiescence or agents by consent. In such an event, they would be entitled to reasonable value for their services.

The reversal of this order will result in a new action for an accounting wherein the allowances may be the same as in the present proceeding. Nevertheless, when the jurisdiction of an important court is the main issue, our duty is plain. The public interest and the interest of jurisprudence might be endangered by permitting this decision to go unchallenged. (Sciolina v. Erie Preserving Co., 151 N. Y. 50, 53.) The major functions of this court include the duty uniformly to settle the law for the entire State and finally to determine its principles,. (Reed v. McCord, 160 N. Y. 330, 335, 336.)

The order appealed from should be modified, without costs to either party, and the case remitted to the Surrogate’s Court for. further proceedings in accordance with this opinion.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and Hubbs, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    In the Matter of the Will of J. Melvin Samson, Deceased. Clara H. Van Gorden, Individually, and as Executrix of J. Melvin Samson, Deceased, and of Emma C. Knight, Deceased, Appellant; James M. Poole et al., Respondents.
    (Argued October 2, 1931;
    decided November 17, 1931.)

      Clayton R. Lusk for appellant.
    The residuary estate should be divided per stirpes between the descendants of the brother and sister, the descendants to each receive one-half. (Dec. Est. Law, § 98, subd. 5.) Subdivision 11 of the Decedent Estate Law deals with distribution in all cases of next of kin of unequal degrees of kindred and provides for distribution in one-half shares. (McGregor v. Comstock, 3 N. Y. 408; Luhrs v. Eimer, 80 N. Y. 171; Jackson v. Fitz Simmons, 10 Wend. 9.)

      Israel T. Deyo for respondents.
    Under the Statute of Descent, nephews and nieces share per capita and grandnephews and grandnieces, children of deceased nephews and nieces, share per stirpes in the real property of an intestate who dies leaving no lineal descendants, the grandnephews and grandnieces taking by representation the shares which would have gone to their deceased parent if living. (Jackson v. Thurman, 6 Johns. 322; Hannan v. Osborn, 4 Paige Ch. 336; Pond v. Bergh, 10 Paige Ch. 140.) The two nieces of testator living at the time of his death are each entitled in her own right to one-fifth of the residuary estate, and the children of each of testator’s three deceased nieces are entitled by representation to the one-fifth interest in the residuary estate to which their deceased mother would have been entitled if living. (Matter of Samson, 233 App. Div. 173; Matter of Prote, 54 Misc. Rep. 495; Matter of Devoe, 107 App. Div. 245; 185 N. Y. 536; Matter of Rowe, 103 Misc. Rep. 111; 197 App. Div. 449; Matter of Hadley, 43 Misc. Rep. 579; Matter of Fleming, 48 Misc. Rep. 589; Hyatt v. Pugsley, 23 Barb. 285; Kelly v. Kelly, 5 Lans. 443; 61 N. Y. 47; Matter of Healy, 27 Misc. Rep. 352; Beer v. Orthaus, 125 App. Div. 574; Adams v. Smith, 20 Abb. N. C. 60.)
   O’Brien, J.

The will of J. Melvin Samson, who died in 1929, gave the residue of his estate to “ my next of kin * * * according to the statute for the distribution of the effects of persons dying intestate.” He left him surviving no widow, descendant, brother or sister. A brother and a sister had predeceased him, leaving issue, and the only collaterals remaining as next of kin were two nieces, daughters of the deceased sister, and eight grandnephews and grandnieces, sons and daughters of three deceased nieces who were daughters of the deceased brother. The Surrogate divided the estate into two equal shares. One he directed to be distributed to the two nieces, the other share to the grandnephews and grandnieces. The Appellate Division, in reversing, directed a division into five equal shares, one share to each of the surviving nieces and the three shares to which, if hving, the three deceased nieces would have been entitled to the grandnephews and grandnieces per stirpes.

Section 98 of the Decedent Estate Law (Cons. Laws, ch. 13), as it existed in 1929, provided: Subdivision 5. “If there be no widow, and no children, and no representative of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives; and if all the brothers and sisters of the intestate be hving, the whole surplus shall be distributed to them; if any of them be living and any be dead, to the brothers and sisters Hving, and the descendants in whatever degree of those dead; so that to each Hving brother or sister shaU be distributed such share as would have been distributed to him or her if aU the brothers and sisters of the intestate who shall have died leaving issue had been Hving, and so that there shall be distributed to such descendants in whatever degree, collectively, the share which their parent would have received if Hving; and the same rule shall prevail as to aU direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degree.” Subdivision 10: Where the descendants or next of kin of the deceased, entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal.” Subdivision 11: When such descendants or next of kin are of unequal degrees of kindred, the surplus shall be apportioned among those entitled thereto, according to their respective stocks; so that those who take in their own right shall receive equal shares, and those who take by representation shall receive the share to which the parent whom they represent, if living, would have been entitled.”

Decedent’s next of kin were of unequal degree. The nearest class of survivors was the one which included the two nieces. In that class belonged also the three deceased nieces. If all had been living, each of the five would have taken an equal share (Subd. 10). Under subdivision 5 the whole surplus must be divided among the two survivors and the representatives of the three deceased. If the two survivors take in their own right, each shall take the same proportion. The grandnephews and grandnieces being in a degree of kindred to the deceased unequal with the nieces, they as representatives of their parents share in the proportionate parts to which those parents as nieces would have been entitled.

The two surviving nieces take in their own right. They do not represent any one but take directly as members of the nearest class of relationship to the intestate. The respective stocks ” (Subd. 11) are determined by the nearest surviving blood relatives. (Hyatt v. Pugsley, 23 Barb. 285, 300, 301.) In Luhrs v. Eimer (80 N. Y. 171) the sister was the nearest blood relative who was not disabled by alien citizenship and, therefore, she took directly and in her own right. Here, no brother or sister survived and the “ stock ” consisted of the class to which the living nieces belonged rather than the class of brothers and sisters all the members of which were dead. The clause in subdivision 5 which reads “ and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degree,” cannot mean, when nieces survive and all brothers and sisters have predeceased the intestate, that the brothers and sisters constitute the stock.”

The result reached by the Appellate Division is supported by all the authorities in this State for more than a century. The law as announced in those decisions has become a rule of property. (Pond v. Bergh, 10 Paige Ch. 140; Kelly v. Kelly, 5 Lans. 443; Hyatt v. Pugsley, 23 Barb. 285; Matter of Devoe, 107 App. Div. 245; affd., 185 N. Y. 536; Matter of Prote, 54 Misc. Rep. 495; affd., 133 App. Div. 928; Matter of Rowe, 103 Misc. Rep. 111; affd., 197 App. Div. 449; Jessup Redfield’s Surrogate’s Practice [1925 ed.], pp. 1688, 1692, 1695.)

The order should, therefore, be affirmed, without costs.

Cardozo, Ch. J., Crane, Lehman, Kellogg and Hubbs, JJ., concur; Pound, J., not voting.

Order affirmed.


author: Per Curiam.

text:
    Beckie Lacov, Respondent, v. Ocean Avenue Building Corporation et al., Defendants, and Simon Newman et al., Appellants.
    (Argued October 14, 1931;
    decided November 17, 1931.)

      Arnold M. Schmidt for appellants.
    A covenant should be enforced between the original parties thereto, irrespective of any alleged change of neighborhood or other extrinsic circumstances. (Korn v. Campbell, 192 N. Y. 490; Trustees v. Lynch, 70 N. Y. 440; Equitable Life Assurance Society v. Brennan, 148 N. Y. 661; Evangelical Lutheran Church v. Sahlem, 254 N. Y. 161; Rowland v. Miller, 139 N. Y. 93; Dollard v. Whowell, 174 App. Div. 403; Pagenstecher v. Carlson, 146 App. Div. 738; 40th St. & Park Avenue, Inc., v. Fox, 222 App. Div. 667; 248 N. Y. 527; Forstmann v. Joray Holding Co., 244 N. Y. 22; Roth v. Jung, 79 App. Div. 1; Schefer v. Ball, 53 Misc. Rep. 448; 120 App. Div. 880; 192 N. Y. 589; McClure v. Leaycraft, 183 N. Y. 36; Batchelor v. Hinkle, 210 N. Y. 243; Amerman v. Deane, 132 N. Y. 355.)

      Stephen Callaghan for respondent.
    The court below was right in awarding plaintiff relief from the restriction herein. (Equitable Life Assurance Society v. Brennan, 148 N. Y. 661; Forstmann v. Jarray Holding Co., 244 N. Y. 22; Trustees of Columbia College v. Thacher, 87 N. Y. 311; McClure v. Leaycraft, 183 N. Y. 36; Batchelor v. Hinkle, 210 N. Y. 243; Amerman v. Deane, 132 N. Y. 385; Schefer v. Ball, 53 Misc. Rep. 448; 120 App. Div. 880; 192 N. Y. 589; Jackson v. Stevenson, 156 Mass. 496; Roth v. Jung, 79 App. Div. 1.) A declaratory judgment was proper. (Westchester Mortgage Co. v. Grand Rapids & Ionia R. R. Co., 246 N. Y. 194; Post v. Metropolitan Casualty Ins. Co., 227 App. Div. 156; Ankerson v. Connelly, [1906] 2 Ch. 544; [1907] 1 Ch. 678; Bristol v. Woodward, 251 N. Y. 275; Evangelical Lutheran Church v. Sahlem, 254 N. Y. 161; Baumert v. Ambler, 230 App. Div. 705; Amerman v. Deane, 132 N. Y. 355; Jackson v. Stevenson, 156 Mass. 496.)
   Per Curiam.

This is an action for a declaratory judgment which shall decree that a certain restrictive covenant restraining the use of respondent’s land is no longer in effect. The judgment of the trial court in favor of the plaintiff has been unanimously affirmed by the Appellate Division, the basis of the decision being that the neighborhood has so changed as to defeat the object for which the restriction was imposed.

The restriction was contained in a deed from the respondent to the appellant. In seeking to be relieved of the effect of such restriction, the respondent was in effect attempting to violate her contract. Under such circumstances, a court of equity should not grant the relief unless the covenantor places the trial court in possession of evidence from which it can formulate a decree which will work full justice to the covenantee. The granting of the relief prayed for should be awarded only in case the covenantee can be compensated, in the decree, for any substantial damage suffered, and the granting of such relief should be conditioned upon the payment of the damages awarded.

The learned trial justice found as a fact that the appellant would be damaged by the removal of the restriction but that the amount of such damage could not be determined from the evidence offered. In view of that finding, it was reversible error to grant the decree.

The judgment of the Appellate Division and that of the Special Term should be reversed and a new trial granted with costs to abide the event.

Cabdozo, Ch. J., Pound, Cbane, Lehman, Kellogg, O’Bbien and Hubbs, JJ., concur.

Judgments reversed, etc.


author: Crane, J.

text:
    Benjamin Katz et al., Copartners under the Firm Name of Katz & Segal, Respondents, v. Massachusetts Bonding and Insurance Company et al., Appellants.
    (Submitted October 16, 1931;
    decided November 17, 1931.)

      Emanuel Goodman for appellants.
    The plaintiffs acquiesced in the making of the order extending the jail liberties, accepted the benefits accruing therefrom and are now, therefore, estopped from asserting that the order was invalid. (Mills v. Hoffman, 92 N. Y. 189; People ex rel. McLaughlin v. Police Commissioners, 174 N. Y. 456; Matter of Cooper, 93 N. Y. 512.) The assent by the plaintiffs to the making of the order was based on a valuable consideration. (Smith v. Bell, 127 App. Div. 278; Jones v. Picard, 101 Misc. Rep. 117.)

      Robert Abelow, Martin H. Latner and Charles Liebling for respondents.
    The order purporting to extend the jail liberties was a nullity and did not change the status of the surety company. (Grafton v. U. S. Fidelity & Guaranty Co., 161 N. Y. Supp. 1127; 227 N. Y. 162; Richardson v. Steuben, 226 N. Y. 13; Sweeney v. Warren, 127 N. Y. 426; McMann v. Rauhr, 47 N. Y. 67.) The appeal was determined when the decision of the Appellate Term was rendered. (Matter of Simmons, 203 N. Y. 241; Henavie v. N. Y. C. R. R. Co., 154 N. Y. 278; Martin v. Wilson, 1 N. Y. 240; Smith v. Village of Nelliston, 79 N. Y. 638; Judson v. Gray, 17 How. Pr. 289; Evarts v. Kiehl, 102 N. Y. 296.) No estoppel can be asserted against the respondent for the application for an extension of the jail liberties was vigorously opposed by respondent; no benefits accrued to the respondent from the order purporting to extend the jail liberties; and the applicant did not rely upon the_order in going without the jail liberties. (Mattes v. Frankel, 157 N. Y. 603; Geiler v. Littlefield, 148 N. Y. 603; New York Rubber Co. v. Rotherie, 107 N. Y. 310; Lord Construction Co. v. Edison P. C. Co., 234 N. Y. 411; City of New York v. N. Y. City R. R., 193 N. Y. 545; Miller v. Clary, 147 App. Div. 255; 13 C. J. 549; 2 Elliot on Contracts, 826; Parmaly v. Showdy, 86 Misc. Rep. 634; Olmstead v. Lattimer, 158 N. Y. 313.)
   Crane, J.

On a body execution issued out of the Municipal Court, borough of Brooklyn, Abraham Schneiderman was arrested and confined to Raymond Street Jail. Thereafter, an undertaking for jail liberties in the sum of $500 was furnished by the Massachusetts Bonding and Insurance Company pursuant to section 517 of the Correction Law (Cons. Laws, ch. 43) and the prisoner was discharged by the sheriff. The liberties of the jail for Kings county is the whole of that county which is coterminous with the borough of Brooklyn. Defendant appealed from the judgment obtained against him in the Municipal Court and from the order refusing to vacate the judgments and pending the appeal to the Appellate Term applied to the Municipal Court for an extension of the jail liberties so as to permit him to carry on his business in the borough of Manhattan, county of New York, and on the 5th day of March, 1928, the Municipal Court made an order reading in part as follows:

Ordered, that pending the determination of the appeal the liberties of the jail are hereby extended up to and including the jurisdictional limits of the city of New York, and the Jail Liberties Bond and all proceedings heretofore had are hereby so amended, and it is further * * *
“ Ordered, upon the consent of the attorneys for the defendant that simultaneously with the entry of this order, and in consideration of it the defendant deliver a release to plaintiffs, their attorney and any and all other persons responsible for the arrest of the defendant herein, releasing them and any of them from any liability by reason of the arrest of the defendant.”

This release was furnished and accepted by the plaintiffs. No appeal was taken from this order by the plaintiffs. By taking and accepting the release they acquiesced in the terms and conditions of the order.

The defendant Schneiderman lost his appeal in the Appellate Term and by an order entered in the records of the Appellate Term on the 30th day of April, 1928, the judgment and order against him were affirmed.

Section 163 of the Municipal Court Act provides that the judgment or order of the appellate court must be remitted for enforcement to the court below. Before this was done and on May 1, 1928, the day after the decision of the Appellate Term, the defendant Schneider-man was found in New York county, and this action was brought on that same day against him and the bonding company to recover the penalty of the bond as for an escape. The plaintiffs claimed, and still claim, that the order of the Municipal Court extending the jail liberties to the county of New York was void in that the court had no power to make such an order; that the acceptance of the release from all liability by the plaintiffs was without consideration and of no effect; and that the defendant Schneiderman in going at large and beyond the boundaries of Kings county made an escape within the meaning of section 525 of the Correction Law. That section reads: The going at large, within the liberties of the jail in which he is in custody, of a civil prisoner who has executed such an undertaking, or of a prisoner who would be entitled to the liberties upon executing such an undertaking, is not an escape. But the going at large, beyond the liberties, by such a prisoner, without the assent of the party at whose instance he is in custody, is an escape; * *

How this assent may be given is not prescribed. It may be in writing, by parole, or by such acts and conduct as indicate an acquiescence and a consent. Although the plaintiffs opposed the application of the defendant for the extension of the jail liberties the Municipal Court made the order referred to above, giving the defendant the privilege of going at large in the city of New York, on condition that he furnish a full general release to the plaintiffs from all or any liability incurred in having him arrested. Plaintiffs recognized this order and acted upon it, or in accordance with it in so far as they received and kept the release furnished by the defendant pursuant to such order. If in the opinion of the plaintiffs the order was void as beyond the jurisdiction and power of the Municipal Court to make, they could have ignored it and refused' to comply with its terms, act upon it, or take the release. Taking the release was at least an indication to the defendant Schneiderman that he was permitted with their acquiescence to comply with the other part of the order by entering New York county. In all fairness some indication should have been given to the defendant or to his surety that the plaintiffs ■refused to recognize the attempted extension of the jail limits. Their act in taking and keeping the release furnished by the defendant pursuant to the order was an assent to his going beyond the liberties within the meaning of section 525.

Whatever may have been the effects of the order and the assent of the plaintiffs, the privilege of the defendant to go to Manhattan or into New York county ended with the determination of the Appellate Term. The defendant had appealed to the Appellate Term and his jail liberties were extended by this assent of the plaintiffs pending the determination of the appeal.” The order of the Appellate Term was entered in its records on April 30, 1928. To give it force and effect, however, the remittitur should have been remitted to the court below. As above quoted, section 163 of the Municipal Court Act requires the order to be remitted for enforcement to the court below. When this was done then, and not until then, would the plaintiffs’ assent have terminated. The appearance of Schneiderman in New York county before this termination of the plaintiffs’ assent did not constitute an escape according to the peculiar facts of this case.

The judgment of the Appellate Division should be reversed and the complaint dismissed, with costs in all courts.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment reversed, etc.


text:
    The People of the State of New York, Respondent, v. William C. Downey, Appellant.
    (Argued October 19, 1931;
    decided November 17, 1931.)

      Milton 0. Auchmoody and Newton H. Fessenden for appellant.
    The verdict was contrary to the weight of evidence and the jury could not have found upon the evidence beyond any reasonable doubt that the defendant was sane. (People v. Klvana, 241 N. Y. 481.)

      Harrison I. Gardener, District Attorney (Jsadore Book-stein of counsel), for respondent.
    The evidence beyond reasonable doubt demonstrated that defendant was not the victim of insane delusions. (Penal Law, § 1120; People v. Taylor, 138 N. Y. 398; People v. Farraro, 161 N. Y. 365; People v. Schmidt, 216 N. Y. 324; People v. Silverman, 181 N. Y. 235.)
   Per Curiam.

The evidence does not justify us in holding, in opposition to the verdict of the jury, that the defendant was laboring under such a defect of reason as not to know the nature and quality of his act, or not . to know that it was wrong. (Penal Law, § 1120.) Whether he was insane in such a sense or in such a degree as to render the imposition of the death penalty unjust or inexpedient is a question that will merit consideration if an application is made for executive clemency.

The judgment of conviction should be affirmed.

Cardozo, Ch. J., Pound, Crane, O’Brien and Hubbs, JJ., concur; Lehman, J., dissents upon the ground that the trial judge did not properly submit to the jury the question whether the homicide was from a deliberate and premediated design to kill, and Kellogg, J., dissents upon the ground that the verdict is against the weight of evidence.

Judgment affirmed.


author: Cardozo, Ch. J.

text:
    Nathan L. Ottinger et al., Individually, and as Trustees under the Will of Marx Ottinger, Deceased, et al., Appellants, v. Arenal Realty Company, Inc., et al., Respondents.

      (Argued October 19, 1931;
    decided November 17, 1931.)

      Sidney Newborg for appellants.
    The statutory enactments primarily require notice, in person or by registered mail, to property owners, and in addition publication in the bulletin. Such notice was not given. (Matter of Reed v. Board, 255 N. Y. 132; Anderson v. Steinway & Sons, 178 App. Div. 513; Shushereba v. Ames, 255 N. Y. 490; Matter of Harper, 106 Misc. Rep. 514; Title Guarantee & Trust Co. v. New York Juvenile Asylum, 133 App. Div. 541; Matter of Cobb, 128 Misc. Rep. 68; People v. Schermerhorn, 19 Barb. 558; Mushlitt v. Silverman, 50 N. Y. 362; Prusik v. Board of Appeal, 262 Mass. 451; Schumacher v. Union City, 154 Atl. Rep. 406; Bradley v. Huber Co., 146 App. Div. 631; 210 N. Y. 627; O’Connor v. Collins, 239 N. Y. 462.) If the charter, building zone resolution and rules do not define the form of notice, personal notice is required. (Steinhardt v. Bingham, 182 N. Y. 326; Stuart v. Palmer, 74 N. Y. 183; Matter of Blumberg, 149 App. Div. 306; Matter of Boland v. Sokolski, 56 Misc. Rep. 333.) Publication in the bulletin is not of itself notice. (Matter of Harper, 106 Misc. Rep. 514; Hartford Trust Co. v. West Hartford, Ann. Cases [1912D], 997; People v. Ahearn, 196 N. Y. 221; People v. Karr, 240 N. Y. 348.) Publication in the bulletin, without notice in person or in some other reasonable manner, would not constitute due process, nor comply with the requirements that there shall be no deprivation of property without service reasonably adequate to assure notice of proceedings to those whose property rights are to be affected. (City of New York v. Wright, 243 N. Y. 84; Matter of City of New York, 212 N. Y. 543; Stuart v. Palmer, 74 N. Y. 183; Wuchter v. Pizzutti, 276 U. S. 24; Coe v. Armour, 237 U. S. 424; Forbes Pioneer Boat Line v.
      Board, 258 U. S. 338; Brewster v. Rogers Co., 169 N. Y. 80; Reid v. Mayor, 139 N. Y. 534.)

      Hyman J. Reit for Arenal Realty Company, respondent.
    Due notice of the application, as required by statute, was given to the appellants. (Prescott v. Pierce, 130 Misc. Rep. 63; People v. Schermerhorn, 19 Barb. 558; Matter of Cobb, 128 Misc. Rep. 67; Prusik v. Board of Appeals, 262 Mass. 451; Title Guarantee & Trust Co. v. New York Juvenile Asylum, 133 App. Div. 541.) There has been full compliance with the rules and practice. (Apartment Hotel Owners Assn. v. City of New York, 133 Misc. Rep. 884; United States v. Finnell, 185 U. S. 236; City of New York v. New York City Ry. Co., 193 N. Y. 549; Stuart v. Palmer, 74 N. Y. 183; City of New York v. Wright, 243 N. Y. 80.)

      Francis J. MacIntyre, James B. McNally and John V. Downey for 23 West Sixty-fifth Street Corporation et al., respondents.
    The statute requires public notice and hearing and even though the record owners did not receive notice by registered mail such failure to receive notice is not a jurisdictional requirement. (Building Zone Resolution, §§ 7-e, 21.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Henry J. Shields and William T. Kennedy of counsel), for City of New York et al., respondents.
    The publications in the bulletin of the defendant Board were sufficient notice to the plaintiffs. (Armatage v. Fisher, 74 Hun, 167; Ellis v. Hearn, 132 App. Div. 207; People ex rel. Ortenberg v. Bales, 224 App. Div. 87; 250 N. Y. 598; Pennsylvania Training School v. Insurance Co., 127 Penn. St. 559; Bush v. McCarty Co., 127 Ga. 308; Cooper v. Davis, 231 App. Div. 527; Wood v. Kane, 143 Va. 281; Elliott v. United Realty Corp., 144 Va. 752; Prusik v. Board of Appeal, 262 Mass. 451; Kane v. Board of Appeals, 173 N. E. Rep. 1; Matter of Wolfsohn
      v. Burden, 241 N. Y. 288; Matter of Isenbarth v. Bartnett, 206 App. Div. 546; 237 N. Y. 617; Seattle Trust Co. v. Roberge, 278 U. S. 116; City of Utica v. Hanna, 202 App. Div. 610; People ex rel. Reinert v. Miller, 188 App. Div. 113; Nectow v. Cambridge, 277 U. S. 183; Matter of Wiegan v. Board of Standards & Appeals, 254 N. Y. 599; Matter of Cobb, 128 Misc. Rep. 67; People ex rel. St. Albans-S. Corp. v. Connell, 257 N. Y. 73; Forstman v. Joray Holding Co., 244 N. Y. 22; Deweese v. Reinhard, 165 U. S. 386.)
   Cardozo, Ch. J.

The action is for an injunction restraining the owner of Nos. 42 to 46 West Sixty-sixth street in the city of New York, from constructing or maintaining a garage, and directing the Board of Standards and Appeals to rescind a resolution sanctioning such use, on the ground that the hearing before the Board was without notice to the plaintiffs, and that the resolution for lack of such notice was without jurisdiction.

On March 21, 1929, the Arenal Realty Company, as landlord, and another corporation, as tenant, filed an application with the Board of Standards and Appeals for permission to construct and operate a garage, and to depart to that extent from the restrictions imposed by the Building Zone Resolution, the petitioners alleging that there were “ practical difficulties or unnecessary hardships ” in the way of carrying out the resolution according to its letter. The application was granted, and the variance allowed, by a resolution adopted by the Board July 16, 1929.

The plaintiffs are the testamentary trustees and devisees of Marx and Moses Ottinger, who died, the first named on May 6, 1922, and the last named on November 18, 1925. As such trustees and devisees they are the owners of No. 48 West Sixty-sixth street, adjoining the proposed garage. They do not dispute the adequacy of the evidence placed before the Board to justify the variance, if there was jurisdiction to act at all. Indeed, jurisdiction existing, there can be no review of the merits in a collateral litigation. What they dispute is the jurisdiction of the Board to consider the merits without notice to the adjoining owners, which they say was never given. They thus take their stand upon the position that the resolution sanctioning the variance may be disregarded as a nullity, and the non-conforming use enjoined.

Three lines of attack have been followed by the plaintiffs in contesting jurisdiction. They say that the notice given is inadequate under section 719 of the charter of the city of New York; that it is inadequate under section 21 of the general zoning resolution; and finally that it is inadequate under the rules of the Board of Standards and Appeals. The three grounds of challenge will be successively considered.

By section 719, subdivision 5, of the charter of the city, the board of appeals [i. e., the Board of Standards and Appeals] shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within a reasonable time.” (Laws of 1916, ch. 503, § 6.)

Upon an application to the Board for a departure from the uses prescribed by the zoning resolution, the neighboring lot owners are not parties ” within the meaning of this statute. The application takes the form of an appeal by the owner from the order of the Superintendent of Buildings refusing a permit for the non-conforming use. The parties to the appeal are the petitioning owner on the one hand and the Superintendent of Buildings on the other. Many orders unrelated to a zoning system may be the subject of an appeal to the Board of Standards and Appeals, and section 719 of the charter is a general provision applicable to all. There may be orders of the Superintendent of Buildings enforcing the provisions of the Building Code or other statutes or ordinances governing construction (Charter, § 406). There may be orders by the Fire Commissioner prescribing safeguards against fire, or by the Tenement House Commissioner affecting the use of tenements. All these orders and others like them may be the subject of appeals (§§ 718-d, 719). The parties ” to the appeal are the owner complaining of the order, and the public officer who has made it. Neighboring property owners, not being parties, derive no right to notice from the provisions of the charter. Whatever right to notice belongs to persons other than the parties, is not built upon the statute. It comes to them either from the rules of the Board itself or from the general zoning resolution, adopted by the Board of Estimate and Apportionment, which is next to be considered.

By section 21 of the zoning resolution, jurisdiction is given to the Board of Standards and Appeals to vary the provisions of the resolution, in harmony with its general purpose and intent, when there are practical difficulties or unnecessary hardships in the way of carrying out such provisions according to their letter. The section closes with these words: “ Before taking any action authorized in this section the Board of Appeals shall give public notice and hearing.”

Public notice satisfying the requirements of a mandate so indefinite may be given in any form that is reasonably adapted to inform the public generally that the application will be heard (City of New York v. Wright, 243 N. Y. 80, 84). The medium of publication selected by the Board is its own official bulletin, printed and published under the authority of the statute. By section 718, subdivision 4, of the charter of the city, “ the board shall print and publish * * * a bulletin in which it shall publish every rule, regulation, every amendment or repeal thereof made by the board, and every order, requirement, decision and determination of the board * * * and such other matters * * * as the board may deem it advisable to publish.” A notice to the public to attend the hearing before the Board at an appointed time and. place and offer such objections as they may have to the prayer of the petition is an order ” or “ requirement ” within the fair meaning of the statute. The Board was not remiss in failing to give notice by publication in the City Record (Greater New York Charter, § 1559). Publication in the City Record is unnecessary except when notice is required by the provisions of this act,” i. e., by the provisions of the charter, and only then if publication is not otherwise provided.” The public notice necessary upon an application for a variance from the general zoning resolution is one prescribed by the resolution, and not by the charter or indeed by any statute. If we were to view it, however, as one exacted by the charter, there would even then be no duty to publish in the City Record, for notice is otherwise provided ” by another section of the act. The statutory mandate that the orders and requirements of the Board be published in its bulletin must be read as. constituting an exception to any general direction to publish somewhere else.

We find no basis for a holding that the bulletin is a publication so specialized and narrow that a notice printed in its pages is not a notice to the public. The Board of Standards and Appeals has many legislative powers, being competent under the statute (Charter, § 718-a) to make, amend and repeal rules and regulations adopted by the Superintendent of Buildings, the Fire Commissioner and other public officers. It may also make, amend and repeal rules and regulations regarding the enforcement of those provisions of the labor law and other laws which relate to the construction, alteration, structural changes in, plumbing and drainage of, elevators, fire escapes on, adequacy and means of exit from and fire alarm systems in all buildings, except tenement houses, within the city of New York.” To all these rules and regulations landowners within the city are under a duty to conform. It would be strange if publication in the bulletin were held inadequate to charge them with notice of a hearing affecting the use of property other than their own when it is adequate to charge- them with notice of rules and regulations directed to their own property and involving penal consequences. True, indeed, it is that through neglect or misadventure an interested owner may fail to consult the bulletin in one case or another, and thereby lose the privilege of attending at a hearing and urging his objections. Such an outcome would be just as likely if there were publication in the City Record. We may suspect indeed that it would be more likely, for the proceedings of the Board, unless printed by themselves, might be lost in a maze of unrelated matters. The very object of the official bulletin is to supply a concentration and an emphasis that would otherwise be lacking.

Public, in any event, the hearing is, even if better forms of publicity could be invented by one bent upon reform. The law does not guarantee the efficacy of its processes to carry notice home to every interested mind. This is so even where constitutional rights would be infringed if publication were omitted. It is so, a fortiori, where publication is an act of grace. Land may be condemned and property interests divested, though the expropriated owner, residing in another State, has never seen the summons that warns him to defend his rights. Still more flexible are the forms available where nothing would be divested nor any right infringed if the proceeding were conducted without notice from opening to close. A permit granted by the Board for a non-conforming use does not take from the public or from any member of the public an interest or easement in the land exempted from the general rule. The zoning resolution might be repealed overnight without violating the Constitution. Whatever right to a preliminary notice belongs to the public or to any of the members of the public has its origin in the resolution and is measured by its terms.

There is no need to invoke the principle of practical construction, though the principle has vahdity to give support to our conclusion. Ever since the zoning system was established, publication of notices of hearing has been through the official bulletin. The unchallenged practice of the years goes far to show that in the daily workings of the zoning system, the notice has been adequate to satisfy the public needs. Countless orders and resolutions would be subject to attack for defect of jurisdiction if a practice so intrenched were to-day to be condemned.

With the holding that publication in the bulletin is notice to the public within the terms and requirements of the zoning resolution, we pass to the inquiry whether there has been any departure from the rules supplementing the resolution, adopted by the Board itself.

The zoning resolution provides (section 21) that the Board of Standards and Appeals shall adopt from time to time such rules and regulations as it may deem necessary to carry its provisions into effect.

Under the authority thus conferred the Board has adopted a rule that as soon as an application is placed upon the calendar, the applicant shall be notified by the Board * * * of the time set for the call of the calendar,” which shall be at least five days thereafter. With this notice the applicant shall be supplied with an official copy of form 7NO, which he is required to send to every property owner entitled to notice of the application. Within three days the applicant must file a verified statement that he has so notified each of such property owners either by personal service or by registered mail. Not less than- fourteen days’ notice of the date fixed for calendar call in each Building Zone application shall be given by publication in the Bulletin of the Board.”

The rule speaks of notice “ to every property owner entitled to notice of the application.” There is no standing definition informing us who these owners are. Instead, the engineer of the Board prepares in each case a memorandum or map of the area of special benefit or injury, and on the basis of the data thus supplied the Board gives such directions in each case as it finds to be expedient or just.

In the case at hand the applicant received a letter on June 17,1929, advising him of the fact that the application would be heard on July 2, 1929, at 2 p. m. On the back of this letter is the form of notice (7NO) of which you must make the necessary copies, and then, at least five days prior to date of calendar call, send one to each of the adjoining and neighboring property owners as per fist furnished by you in filing your papers.”

The notice speaks of a fist furnished as part of the appeal, and the applicant is directed to mail notices accordingly. The applicant followed this direction, and mailed notices “ as per list furnished in filing [its] papers,” but the list was erroneous, with the result that the plaintiffs, who were adj oining owners, had no knowledge of the hearing.

The error came about as follows: Marx and Moses Ottinger, as we have seen, were the owners during their lives of the building adjoining the premises in suit. The fist of property owners filed with the appeal gave the name of Max (instead of Marx) Ottinger, omitting Moses altogether, but giving 31 Nassau street as the post office address. Marx and Moses Ottinger when alive had an office at that address, and there was still a room in the same building which bore the words “ Estates of Marx and Moses Ottinger,” with the names of the executors. The post office, not finding a Max Ottinger at the place to which the notice was directed, returned it to the sender.

The Board of Standards and Appeals did not lose jurisdiction to hear the application through its failure to discover the true names of the adjoining owners, and to address the notices to such owners instead of to the names that had been stated on the list. To hold otherwise would be to charge the Board with a duty to search the title of every parcel upon the same or neighboring blocks, and to ascertain at the peril of the proceeding to whom ownership had passed. In the very case at hand, the situation would have been little improved, unless perhaps by accident, if the notice had been addressed to Marx Ottinger, for Marx Ottinger was dead. It could not with propriety have been addressed to his estate,” for an estate is not an entity known to the law. The embarrassments incidental to a holding that ownership must be ascertained and notice mailed accordingly, go far to disprove the duty supposed to have been violated. Whatever the Board does to supplement the general requirement that notice of hearing shall be given to the public generally by publication in the bulletin, is to be determined in the particular case before it, and its own judgment and discretion supply the only guide. Here it ordered mailing in accordance with a particular list submitted by the applicant and supposed to be correct. Jurisdiction did not fail because the list was incomplete.

Prusik v. Board of Appeal (262 Mass. 451) and Kane v. Board of Appeals (273 Mass. 97) do not touch the case at hand. The Massachusetts statute establishes the most recent tax list ” as the test whereby to determine the identity of owners, and imposes a duty on the Board to mail the notices accordingly. No such requirement exists under the statute of New York.

Whether added safeguards should be adopted to give better assurance that the proceedings of the Board shall be brought to the notice of interested owners, we do not undertake to say. If such safeguards are necessary, the remedy must be found either in new and more precise rules to be adopted by the Board or in an amendment of the statute or the zoning resolution. Even under the law as it stands, the Board has discretionary power to reopen its determination either pn its own motion or on that of any one aggrieved (Charter, § 719, subd. 6). The plaintiffs have not chosen to apply for that relief. Possibly they would not have been successful if they had asked for it, for other owners, interested too, had been given a full opportunity to state the grounds of opposition. As to this there is no need to speculate. We take the statute and the resolution as we find them, and fix the remedy accordingly.

Our conclusion is upon the whole case that apart from an order of the Board directing the mailing of notices in accordance with a particular list, adjoining owners have no right to information as to the time and place of hearing in excess of the right belonging to them as members of the general public, the indefinite mass of residents protected by the zoning system.

The judgment should be affirmed with costs.

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment affirmed.


text:
    Alfred H. Newburger et al., Appellants, v. Jacob J. Lubell, Respondent.

      (Argued October 21, 1931;
    decided November 17, 1931.)

      Osmond K. Fraenkel for appellants.
    The complaint states a sufficient cause of action for a declaratory judgment. (James v. Alderton Dock Yards, Ltd., 256 N. Y. 298; Matter of Webster v. Van Allen, 217 App. Div. 219; Matter of Newburger v. Gold, 255 N. Y. 532.) The complaint is sufficient as an action specifically to enforce the arbitration agreement. (Matter of Webster v. Van Allen, 217 App. Div. 219.)

      Julius Henry Cohen and Kenneth Dayton for Chamber of Commerce of the State of New York, amicus curioe.

    The relief demanded in the complaint is appropriate to the facts pleaded, is authorized by statute, and is necessary to the effective administration of justice and enforcement of the Arbitration Law. (Corr v. Hoffman, 256 N. Y. 254; Matter of Webster v. Van Allen, 217 App. Div. 219; Matter of Wenger & Co. v. Propper Silk Hosiery Mills, 239 N. Y. 199.)

      Isaac Cohen for respondent.
    Plaintiffs have not stated a cause of action for a declaratory judgment, and should have resorted to a remedy at law which is fully adequate or to a petition for arbitration. (Loesch v. Manhattan Life Ins. Co., 128 Misc. Rep. 232.)
   Cardozo, Ch. J.

The question to be determined is whether the Appellate Division exercised its discretion erroneously in holding the complaint insufficient to require the court to proceed to a declaratory judgment.

The plaintiffs, a firm of stockbrokers, bought and sold securities for the defendant, and carried them for his account, under a written agreement that any controversy arising between the parties to the account should be determined by arbitration. As the result of their transactions, the defendant became indebted to the plaintiffs on January 2, 1931, in the sum of $48,937.23, which indebtedness the defendant is alleged to have confirmed and approved. In partial liquidation of this debit balance the plaintiffs applied securities belonging to the defendant’s brothers of the value of $34,374.26, under a claim that such use was authorized by the terms of guaranties in writing. The brothers have contested the plaintiffs’ right to apply the securities or the proceeds upon account of the defendant’s debt, and have submitted the controversy to the decision of arbitrators. To that arbitration' the defendant is not a party. If the use of the proceeds is confirmed by the arbitrators the balance due from the defendant will be reduced to the sum of $14,562.97; if it is not confirmed, the debit balance will be left at $48,937.23, the figure at which it stood at the close of the account.

The plaintiffs say that they do not know of any controversy now existing between themselves and the defendant. They have requested the defendant to advise them whether he claims that any controversy exists, but he has not responded to the call. They are fearful that an action at law to recover the balance due may be deemed to be a waiver of the right to resort to arbitration if thereafter it shall develop as the result of the defendant’s answer or otherwise that a controversy exists, and they are fearful, on the other hand, that a petition at this time for the appointment of an arbitrator may be met by the objection that in the absence of a controversy there is no need of the appointment, and nothing to decide.

Accordingly, they demand judgment declaring that no controversy exists between them and the defendant, and for the sum of $48,937.23, upon which judgment they agree to credit any sums received from the defendant’s brothers pursuant to the guaranties; or in the alternative, if any controversy exists, that arbitration be directed to proceed in accordance with the contract.

A suit for a declaratory judgment is a discretionary remedy (Civ. Prac. Act, § 473), which may be withheld if existing forms of action are reasonably adequate (Rules Civ. Prac. rule 212). Adequate we think they are.

The plaintiffs may sue at law and reduce their claim to judgment. If the defendant does not contest the debt, they will have judgment by default. On the other hand, if he does contest, with the result that a controversy develops, they will be free to discontinue, and get the benefit of the contract that whatever controversy arises shall be settled by arbitration. We see no force in the objection that a waiver or abandonment of the benefits of arbitration could be inferred from the mere commencement of an action in the absence of notice that a controversy existed. “ Waiver is an intentional abandonment or relinquishment of a known right ” (Alsen’s A. P. C. Works v. Degnon Contracting Co., 222 N. Y. 34).

The plaintiffs are not restricted, however, to an action at law. If the defendant fails to pay the debt and refuses to declare himself as to the reason for the failure, leaving the plaintiffs uncertain whether he contests it or not, they may file their petition under section 3 of the Arbitration Law (Cons. Laws, ch. 72), alleging their uncertainties and praying that the defendant be required to submit to arbitration whatever controversies exist. If the defendant in response to the petition disclaims any controversy and concedes the debt, the court will not appoint arbitrators to compose a non-existing difference or one not within the scope of the defendant’s promise (cf. Matter of Fletcher, 237 N. Y. 440; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; City of Omaha v. Omaha Water Co., 218 U. S. 180, 195), but the defendant may be estopped in such circumstances from interposing a defense thereafter (Sturm v. Boker, 150 U. S. 312, 333, 334). On the other hand, if the defendant remains obstinately silent, the court may infer from the very fact of silence that the petitioner’s demand is not so plainly and fully uncontested as to make resort to arbitration useless, and may then proceed to a decree accordingly. One who has become a party to a contract for the arbitration of future differences must live up to his engagement according to its spirit. He will not be permitted to wrest it from its purpose and turn it into a shallow form by taking refuge in a disingenuous silence or in subtle and adroit evasions.

The judgment should be affirmed with costs.

Pound, Crane, Lehman, Kellogg, O'Brien and Hubbs, JJ., concur.

Judgment affirmed.


text:
    The People of the State of New York, Appellant, v. Jack Monahan, Respondent.
    (Argued September 28, 1931;
    decided November 17, 1931.)

      Arthur G. Adams, District. Attorney, for appellant.
    The Legislature by section 182 of the Village Law only intended to confer upon Police Courts exclusive jurisdiction of those misdemeanors mentioned in sections 56 and 56-a of the Code of Criminal Procedure. (People v. McClellan, 133 Misc. Rep. 280; People v. Kraft, 135 Misc. Rep. 585.) If the jurisdiction of the Supreme and County Courts is to be limited, limitations must be made by language that is plain, simple and direct, not by language that is either ambiguous or confused. (People v. McDonald, 26 Hun, 156; People v. McClellan, 130 Misc. Rep. 280; People v. Kraft, 135 Misc. Rep. 585; People v. Henries, 136 Misc. Rep. 224.) Major misdemeanors not mentioned in sections 56 and 56-a must be prosecuted by indictment. (People v. Belle, 131 Misc. Rep. 610; People v. Kraft, 229 App. Div. 281; People v. McDonald, 26 Hun, 156; People v. McClellan, 133 Misc. Rep. 280; People v. Kelley, 230 App. Div. 249; People v. Henries, 136 Misc. Rep. 224; People v. Corbin, 227 App. Div. 840; People v. Baxter, 196 App. Div. 824.)

      Bert T. Baker for respondent.
    The Police Court of the village of Groton had exclusive jurisdiction, in the first instance, subject to the right of removal, as provided by the Code of Criminal Procedure, to a court having authority to inquire by the intervention of a grand jury into offenses committed within the county. (Village Law, § 182; People v. Kraft, 229 App. Div. 281; People v. Kelly, 230 App. Div. 239; People v. Belle, 131 Misc. Rep. 610; People v. Monahan, 233 App. Div. 16; People v. Casey, 233 App. Div. 18; People v. Howe, 218 App. Div. 273.) A certificate of removal can be granted for other misdemeanors than those minor offenses enumerated in section 56 of the Code of Criminal Procedure. (People v. Kraft, 229 App. Div. 281; People v. Cooper, 42 Hun, 196.)
   Crane, J.

The defendant was indicted by the grand jury of Tompkins county for an alleged violation of section 1530 of the Penal Law, charged with maintaining a public nuisance in the village of Groton, Tompkins county, New York. The County Court dismissed the indictment for lack of jurisdiction, and the question presented is whether section 182 of the Village Law (Cons. Laws, ch. 64) gives exclusive jurisdiction over misdemeanors to the police justice of the village.

Inferior local courts of civil and criminal jurisdiction may be established by the Legislature. Courts of Special Sessions and inferior local courts of similar character shall have such jurisdiction of • offenses of the grade of misdemeanors as may be prescribed by law, and the Legislature may authorize them to try such offenses without a jury. (N. Y. Const, art. VI, § 18.)

The Village Law, by section 182, defines the criminal jurisdiction of the village police justice. It reads:

§ 182. Criminal jurisdiction of village police justice. The police justice of a village may hold a court of special sessions therein and shall have in the first instance exclusive jurisdiction to hear, try and determine charges of any misdemeanor committed within such village subject to the right of removal, as provided by the code of criminal proceedure, to a court having authority to inquire by the intervention of a grand jury into offenses committed within the county. Such police justice shall have exclusive jurisdiction to take the examination of a person charged with the commission in such village of a felony and also to hear, try, and determine charges against a person of being a vagrant or disorderly person within such village, or of having committed disorderly conduct therein; and to take such proceedings in either of such cases as may be taken by a justice of the peace, or magistrate with all the powers and subject to all the duties and liabilities of same. * * * ”

Prior to the amendment made by the Laws of 1927, chapter 650, section 26, this section read: The police justice of a village may hold a court of special sessions therein and shall have in the first instance exclusive jurisdiction to hear, try and determine charges of a misdemeanor committed within such village and triable by a court of special sessions, subject to the right of removal,” etc.

And as to the examinations, it read: “To take the examination of a person charged with commission in such village of a crime not triable by a court of special sessions.”

The change made was by substituting any misdemeanor for a misdemeanor and striking out the words “ not triable by a court of special sessions.” And as to examination, the change made was by taking out the words “ of a crime not triable by a court of special sessions,” and substituting the words “ of a felony.”

Thus the Legislature extended to the police justice of the village the jurisdiction possessed by the Special Sessions in cities of trying all misdemeanors and restricting him to preliminary hearings in felony cases.

Since the amendment of section 717 of the Code of Criminal Procedure in 1926, any Court of Special Sessions having jurisdiction may impose the punishment provided by statute regardless of the former limitation. The sentence may be “ imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both,” unless otherwise provided. (Penal Law, § 1937; People ex rel. Pierce v. Howe, 218 App. Div. 273; People v. Kraft, 229 App. Div. 281.)

The District Attorney on this appeal has argued that the Village Law should be interpreted to confine the jurisdiction of the police justice to those misdemeanors which can be removed into the higher courts under the provisions of sections 57 and 58 of the Code of Criminal Procedure. Title VI of part I of the Code of Criminal Procedure relates to Courts of Special Sessions and police. Section 56 reads: “ Subject to the power of removal provided for in this chapter, courts of special sessions, except in the city and comity of New York and the city of Albany, have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties, as follows: * * *.” Then follows the enumeration of thirty-nine specified offenses, of which the maintaining of a nuisance (Penal Law, § 1530) is not one. There are many other misdemeanors not included in this enumeration. Sections 57 and 58 provide for the removal into the County Court or the Supreme Court of any of the misdemeanors enumerated in section 56, under the certificate of a county judge or a justice of the Supreme Court that it is reasonable that such charge be prosecuted by indictment. We are asked to hold that the Village Law read in connection with these provisions of the Code of Criminal Procedure should restrict the jurisdiction of the police justice to the misdemeanors enumerated in section 56 of the Code of Criminal Procedure because, it is said, these are the ones which may be removed into the County or the Supreme Court, pursuant to sections 57 and 58. The Village Law must be deemed to say, any misdemeanor within such village which is subject to the right of removal as provided by the code of criminal procedure.” But the words “ which is ” are not in the statute. We cannot give the Village Law such a restricted meaning. We take it as it reads. The police justice has exclusive jurisdiction of any misdemeanor committed within the village, subject to the right to remove it into the County Court or the Supreme Court in accordance with the method provided in sections 57 and 58. Not only is this the reasonable interpretation to give to the words subject to the right of removal as provided by the code of criminal procedure,” but it is in fine with the apparent purpose of the Legislature to conform the jurisdiction of the village police justice holding Special Sessions with the Courts of Special Sessions in the cities of the State. As long as the courts of record keep control over the trial of misdemeanors through the power of removal in a proper case, there is no reason for us to narrow the provisions of section 182 in the way suggested.

Upon this point we approve of the ruling in People v. Kraft (229 App. Div. 281) and People v. Monahan (233 App Div. 16).

The judgment should be affirmed.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment affirmed.


text:
    Junius Construction Corporation, Respondent, v. Bessie Cohen, Individually, and as Executrix of David Cohen, Deceased, Appellant.

      (Argued October 6, 1931;
    decided November 17, 1931.)

      Joseph J. Corn, Jr., for appellant.
    Statutes similar to and less drastic than section 35 of the General City-Law have been held unconstitutional. (Seaman v. Hicks, 8 Paige, 655; Matter of Wall Street, 17 Barb. 617; Matter of Rogers Avenue, 29 Abb. N. C. 361; Forster v. Scott, 136 N. Y. 577; Matter of Mayor, 24 App. Div. 7; German American Real Estate Co. v. Meyers, 32 App. Div. 41; Edwards v. Bruorton, 184 Mass. 529; Matter of City of New York [Avenue D], 200 N. Y. 536; People ex rel. N. Y. C. & H. R. R. R. Co. v. Priest, 206 N. Y. 274; Kittinger v. Rossman, 12 Del. Ch. 276; Sage v. City of Brooklyn, 89 N. Y. 189.) The trial court did not err in rejecting plaintiff’s proposed proof of changed conditions. (Allen v. Pfaltz & Bauer Realty Co., Inc., 227 App. Div. 666; Pakas v. Clarke, 136 App. Div. 292; 203 N. Y. 534; Jenkins v. Fahey, 73 N. Y. 355; Schiffer v. Dietz, 83 N. Y. 300; Haffey v. Lynch, 143 N. Y. 241; Merchants Bank v. Thomson, 55 N. Y. 7; Westown Realty Co. v. Keller, 143 App. Div. 458; Schmidt v. Reed, 132 N. Y. 108; Maupai v. Jackson, 139 App. Div. 524; Strasbourger v. Hesu Realty Co., 198 App. Div. 805; Thomas v. Scott, 127 N. Y. 133.)

      Joseph Feldman and Louis Rosenberg for respondent.
    In view of the express representation in the contract contained, as to just what streets are shown on the final city maps, no proper title was tendered by the defendant in accordance with the contract provisions. (Forster v. Scott, 136 N. Y. 577.) Assuming section 35 of the General City Law to be constitutional and valid, the final city map showing Rutledge street as a proposed street through the property, created an incumbrance which rendered title on the date of closing unmarketable. (Forster v. Scott, 136 N. Y. 577; Anderson v. Steinway, 178 App. Div. 507; Kerrigan v. Backus, 69 App. Div. 329; Kellogg v. Ingersoll, 2 Mass. 97; Empire Corp. v. Sayre, 107 App. Div. 415.) The refusal of the trial court to permit proof of change of circumstances between the closing date and the day of trial was error. (Scheller v. Dietz, 83 N. Y. 399; Stokes v. Stokes, 155 N. Y. 590; Eiseman v. Josephthal, 71 Misc. Rep. 288; Peters v. Delaplaine, 49 N. Y. 362; Strasbourger v. Hesu Realty Co., 198 App. Div. 805; Weinheimer v. Ross, 205 N. Y. 518; Maupai v. Jackson, 64 Misc. Rep. 407; 139 App. Div. 524; Hubbell v. Von Schoening, 49 N. Y. 326; Clarke v. Rochester, L. & N. F. R. R. Co., 18 Barb. 350; Trustees of Columbia College v. Thatcher, 87 N. Y. 317; Miller v. Bronson, 26 R. I. 62; Meidling v. Trefs, 48 N. J. Eq. 638; Rennyson v. Rozell, 106 Penn. St. 407.)
   Cardozo, Ch. J.

Plaintiff and defendant’s testator made a contract whereby the one agreed to buy and the other to sell a parcel of land in the borough of Queens, city of New York, bounded on the south by Haverkamp street, on the west by Acton street and on the east by Weisse avenue. In the list of incumbrances we find the following: “ Subject to the facts that section 35 of the Final Maps of the Borough of Queens shows a proposed change in the fine of Weisse Avenue; if such street is legally opened upon the lines shown by said final maps a portion of said premises fronting on Weisse Avenue will be taken for street purposes; and also subject to the facts that section 35 of the final maps of the Borough of Queens shows a street known as Acton Street running across the northwesterly portion of said premises-; if such street is legally opened upon the fines shown by said final maps a portion of said premises will be taken for such street.”

The buyer was thus warned that the opening of streets on the east and west might modify in the future the exterior boundaries, and might affect to that extent the area subject to improvement. What the buyer was not warned of is the fact that on the same map there was another street (Rutledge street), which, if opened, would cut the plot substantially in half. This information the seller withheld.

At the appointed time for closing, the buyer, who had examined the records in the interval, refused to accept a conveyance, taking the ground that the contract had been made with a view to the building of a factory, and that a street bisecting the plot would make the conveyance useless.

This action has been brought to recover the down payment and the title expenses and to declare them liens upon the land. The defendant has counterclaimed for specific performance. There was proof upon the trial that while the action was pending a new map had been filed, and that Rutledge street was no longer there.

The trial judge refused to receive testimony as to the purpose of the plaintiff in contracting to buy the land, and as to a change in its financial position between the rejection of the title and the time of the trial, two years thereafter. The Appellate Division reversed and granted a new trial on the ground that evidence of changed conditions had been erroneously excluded.

We think the plaintiff acted without fault in refusing to accept the conveyance tendered by the seller.

By an amendment adopted in 1926 (Laws 1926, ch. 690) there was inserted in the General City Law (Cons. Laws, ch. 21) an article, designated 3, covering the subject of official maps and planning boards.

By section 26 of the act, as thus amended, every city by ordinance or resolution of the legislative body which has the authority to lay out, adopt and establish streets, highways and parks may establish an official map or plan of the city showing the streets, highways and parks theretofore laid out, adopted and established by law, and such map or plan is to be deemed to be final and conclusive with respect to the location and width of streets and highways and the location of parks shown thereon. Such official map or plan is hereby declared to be established to conserve and promote the public health, safety and general welfare. Said ordinance or resolution shall make it the duty of some appropriate official or employee of said city at once to file with the clerk or register of the county or counties in which said city is situated a certificate showing that the city has established an official map or plan.”

By section 27, the legislative body is empowered to create by resolution or ordinance a planning board of five members to be appointed by the mayor or other duly authorized appointing authority.

By section 29, the legislative body of each city is empowered to change the official map or plan from time to time after a public hearing, but before making such change the matter shall be referred to the planning board for report thereon.

By section 35, the Legislature prohibited the construction of a building within the lines of a mapped street except upon a permit to be issued subject to such conditions as the board having jurisdiction of the application might see fit to approve. The section reads as follows: For the purpose of preserving the integrity of such official map or plan no permit shall hereafter be issued for any building in the bed of any street or highway shown or laid out on such map or plan, provided, however, that if the land within such mapped street or highway is not yielding a fair return on its value to the owner, the board of appeals or other similar board in any city which has established such a board having power to make variances or exception in zoning regulations shall have power in a specific case by the vote of a majority of its members to grant a permit for a building in such street or highway which will as little as practicable increase the cost of opening such street or highway, or tend to cause a change of such official map or plan, and such board may impose reasonable requirements as a condition of granting such permit, which requirements shall inure to the benefit of the city. Before taking any action authorized in this section, the board of appeals or similar board shall give a hearing at which parties in interest and others shall have an opportunity to be heard. At least fifteen days’ notice of the time and place of such hearing shall be published in an official publication of said city or in a newspaper of general circulation therein. Any such decision shall be subject to review by certiorari order issued out of a court of record in the same manner and pursuant to the same provisions as in appeals from the decisions of such board upon zoning regulations.”

We find it unnecessary to determine for the purpose of this appeal whether the official map on file in the city of New York, a map prepared by the local authorities in accordance with section 442 of the charter of the city, is such a map as was contemplated by the Legislature in the enactment of section 26 of the General City Law. We find it also unnecessary to determine whether section 35 with its restrictions upon the enjoyment of the land within the boundaries of a mapped street is an unconstitutional interference with vested rights of property (cf. on the one hand Forster v. Scott, 136 N. Y. 577; Matter of Wall Street, 17 Barb. 617, 636; People ex rel. N. Y. C. & H. R. R. R. Co. v. Priest, 206 N. Y. 274; Edwards v. Bruorton, 184 Mass. 529, and on the other hand, Matter of City of New York, 196 N. Y. 255; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Village of Euclid v. Ambler Realty Co., 272 U. S. 365). For the purpose of this appeal we may assume in favor of the appellant that the mere marking on an official map of a projected, but unopened street, will not deprive the buyer of the right to build within the fines so mapped until appropriate proceedings for condemnation have placed the title in the city. If all this be taken as true, we are still brought to the conclusion that there was misrepresentation by the seller as to the situation of the land and the contingencies affecting the right to use it in the future whereby the buyer was relieved of the duty to go forward with the bargain.

The contract describes as an incumbrance the existence of Acton street and Weisse avenue upon the official map of the borough, and gives warning that the land as mapped may thereafter be condemned. The opening of those streets will leave the subject of the sale substantially intact. The buyer, warned of the risk, was ready to assume it. But there was another and greater risk about which the seller was silent, a risk like in kind but vastly greater in degree. Rutledge street, if opened, would split the plot in halves. The seller was not at liberty in good conscience to fist among the incumbrances the two unopened streets, which, even if opened, would leave the value unimpaired, and, while listing these, suppress the existence of a third unopened street, which, if opened, would destroy the value for the use intended by the buyer. No one can say with reason that the plaintiff would have signed this contract if informed of the likelihood that its factory, when built, would be bisected by a street, to say nothing of the possibility that a permit to build would be denied altogether. Misrepresentation, if there was any, as to a risk so vital was something that went to the very essence of the bargain. We do not say that the seller was under a duty to mention the projected streets at all. That question is not here. What we say is merely this, that having undertaken or professed to mention them, he could not fairly stop half way, listing those that were unimportant and keeping silent as to the other. The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase. The result is the same whether the silence of the seller as to the presence of a bisecting street was innocent or deceitful. Misrepresentation, even though innocent, sustains the rescission of the contract and the rejection of the title (Bloomquist v. Farson, 222 N. Y. 375; Seneca Wire & Mfg. Co. v. Leach & Co., 247 N. Y. 1; Ultramares Corp. v. Touche, 255 N. Y. 170, 186).

The defendant makes the point that the title, even if defective at the time of closing, had been made good before the trial as the result of an amendment of the map, and that judgment for specific performance should have been given on the counterclaim (Haffey v. Lynch, 143 N. Y. 241). This is true only if changed conditions did not render such relief inequitable. Two years had elapsed between the law day and the trial, and a time almost as long between the law day and the later map. The plaintiff offered testimony designed to inform the court that it was buying the land in order to erect a factory; that the purpose of the whole transaction had been frustrated by delay; and that added to all this, the financial condition of the buyer had so changed in the interval as to render performance of the bargain either impossible or burdensome. All this testimony was rejected by the trial judge with a sweeping ruling to the effect that nothing would be received with reference to change of circumstances in respect of the purpose of the purchase or the means of the purchaser. The testimony offered had a material bearing upon the justice of awarding specific performance to a seller who, after default upon the law day, had become a postulant in equity for a discretionary remedy (Willard v. Tayloe, 8 Wall. [U. S.] 557; Gotthelf v. Stranahan, 138 N. Y. 345, 352; Stokes v. Stokes, 155 N. Y. 581, 590).

The order should be affirmed and judgment absolute ordered against the appellant upon the stipulation with costs in all courts.

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.


text:
    Jonah J. Goldstein, Appellant, v. James L. Hunter et al., Respondents.

      (Argued October 7,1931:
    decided November 17, 1931.)

      Albert de Roode and David Goldstein for appellant.
    The conveyance to plaintiff’s predecessor granted by implication an easement in the drainage system as it then existed and was known to the grantor, and this easement was binding as against the defendants, who acquired the servient tenement. (Heyman v. Biggs, 223 N. Y. 118; Parsons v. Johnson, 68 N. Y. 62; Lampman v. Milks, 21 N. Y. 505; Thayer v. Payne, 2 Cush. 327; Simmons v. Cloonan, 47 N. Y. 3; 81 N. Y. 558; Green v. Collins, 86 N. Y. 246; Paine v. Chandler, 134 N. Y. 385; Johnson v. Jordan, 43 Mass. 234; Spencer v. Kilmer, 151 N. Y. 390; Mattes v. Frankel, 157 N. Y. 603; Phillips v. West Rockaway Land Co., 226 N. Y. 507; Wiesel v. Smira, 49 R I. 246.) Knowledge by or visibility to a subsequent grantee of the servient tenement has nothing to do with the anterior creation of the easement. (Lampman v. Milks, 21 N. Y. 505; Simmons v. Cloonan, 47 N. Y. 3; 81 N. Y. 558; Parsons v. Johnson, 68 N. Y. 62; Paine v. Chandler, 134 N. Y. 385; Spencer v. Kilmer, 151 N. Y. 390; Heyman v. Biggs, 223 N. Y. 118.) The easement need not be corporeally apparent, open or visible if the grantor of the dominant tenement has actual knowledge of its existence. (Larsen v. Peterson, 53 N. J. Eq. 88; Schwann v. Cotton, [1916] 2 Ch. 120; Simmons v. Cloonan, 81 N. Y. 558; Phillips v. West Rockaway Land Co., 226 N. Y. 507; Huttemeier v. Albro, 18 N. Y. 48; Matter of Brook Avenue, 40 App. Div. 519; 161 N. Y. 622; Matter of 116th Street, 1 App. Div. 436.)

      Edward J. Pigott, H. Lincoln Miller and Anthony B. Bernard for respondents.
    No easement was created in favor of the plaintiff on the severance of the entire estate by a common owner. (Lampman v. Milks, 21 N. Y. 505; Paine v. Chandler, 134 N. Y. 387.) Knowledge on the part of the grantor alone is not sufficient to create an easement by implication. (Simmons v. Cloonan, 81 N. Y. 558; Heyman v. Biggs, 223 N. Y. 118; Mattes v. Frankel, 157 N. Y. 603.)
   Crane, J.

This action is brought by the plaintiff for the purpose of securing a permanent injunction restraining the defendants from cutting off the connection of the plaintiff’s dwelling house at No. 1 Ostend place, Far Rockaway, in the borough of Queens, city of New York, with the sewer connected therewith in Grandview avenue.

On or about November 13, 19] 5, one Kean became the owner of property at Far Rockaway running from Ostend place about 300 feet through to Grandview avenue. In this avenue there was a public sewer. Kean caused to be erected on this unified plot of land three dwellings known as Nos. 1, 5 and 9 Ostend place, and three bungalows in the rear toward Grandview avenue. There was a house already constructed back of these bungalows and nearer to Grandview avenue.

When these buildings were erected a sewer for common use was also built by Kean from the Ostend place part of the property down to the public sewer in Grandview avenue and the drainage from these seven houses connected with this common sewer.

On the 9th day of January, 1920, Kean conveyed to Bieber, plaintiff’s predecessor in title, one of the three houses on Ostend place, known as No. 1, at which time all seven houses were connected with the sewer. Kean having retained the four houses and property between the plaintiff’s house and Grandview avenue, by implication of law established an easement as against himself in his land for the maintenance of the sewer connections from the plaintiff’s property through to the main sewer on Grandview avenue. In other words, a grantor of a unified plot through which a sewer runs and on which lot houses have been built, by conveying one of the houses impliedly grants to his grantee the right to use the main sewer connections as constructed running through his land to the sewer in the street. The purchaser in such a case would have an easement through his grantor’s land to use the constructed sewer connections. Although not expressed in the deed, the implied easement arises because the grantor knew of the one sewer pipe connecting all the houses and was well aware that the portion of the property he had granted away was drained through the sewer.

Later, and on the 2d day of March, 1921, Kean conveyed to the defendants the property through which ran this common sewer, who took without any knowledge of existing conditions or of this underground drain connecting the surrounding houses. The record title disclosed no easement in the property they were about to- purchase and nothing in the deeds indicated that the plaintiff had any rights therein. They took the property without notice of the connection of the plaintiff’s house with a drain running through their property and underneath their houses to Grandview avenue.

The trial court has found as a fact that no physical construction upon the property would give notice to a reasonably prudent purchaser of the existence of such a drain. How, then, can these innocent purchasers, without notice, lose a portion of their fee by an easement running through and over their land, in behalf of the plaintiff, as a dominant tenant?

The Real Property Law (Cons. Laws, ch. 50), in section 242, says: “An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, can not be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing.”

And section 291, relating to the recording of conveyances, provides: “A conveyance of real property, within the state, * * * may be recorded in the office of the clerk of the county where such real property is situated, * * *. Every such conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded.”

The defendants were purchasers in good faith and for a valuable consideration. If in recording their deed they would hold their property as against any prior unrecorded deed held by the plaintiff, surely they would hold it free from anything less than a deed in fee such as an agreement, express or implied, creating an easement. Good faith means also want of notice. If the defendants had had notice, actual or constructive, regarding the easement, their rights would be subordinate thereto. Notice in a case like this would arise from such conditions on the property as would draw the attention of a reasonably prudent purchaser to the underground drain or put him on inquiry regarding it. Butterworth v. Crawford (46 N. Y. 349, 352) stated the principles to be applied: The rule of law which creates "an easement on the it severance of two tenements or heritages, by the sale of one of them, is confined to cases, where an apparent sign of servitude exists on the part of one of them in favor of the other; or as expressed in some of the authorities, where the marks of the burden are open and visible.

Unless therefore, the servitude be open and visible, or at least, unless there be some apparent mark or sign, which would indicate its existence to one reasonably familiar with the subject, on an inspection of the premises, the rule has no application.”

Vice-Chancellor Pitney, in Larsen v. Peterson (53 N. J. Eq. 88, p. 94), stated regarding a similar situation: “ The parties should have either actual knowledge of the quasi-easement or knowledge of such facts as to put them upon inquiry.” The cases of Paine v. Chandler (134 N. Y. 385); Treadwell v. Inslee (120 N. Y. 458); Lampman v. Milks (21 N. Y. 505), while actions by or against the original grantor, also indicate this as the true rule. (See, also, Steinbeck v. Helena, 195 App. Div. 186, 189.)

The opinion in Stuyvesant v. Early (58 App. Div. 242), confidently relied upon by the appellants and cited in Wiesel v. Smira (49 R. I. 246), states that there was a visible arrangement by which the plaintiff’s sewerage was discharged through a drain under the adjacent property, then owned by the grantor, to the sewer in Forty-first street. The case proceeds upon the theory that the drain and connecting sewer were visible and apparent, or at least that the conditions were such as to carry this knowledge to one examining the premises. In so far as Wiesel v. Smira (supra) declares a different principle, we cannot adopt it.

The findings in this case are that the defendants made a physical inspection of both the property conveyed to them and the property of the plaintiff prior to the acquisition of title, and the inspection disclosed no sewer drain or pipe running across the property of both the plaintiff and the defendants or of either of said properties; that the pipe was not open, apparent or visible. As supplementary to these findings, we have examined the evidence and can discover no proof of any visible or apparent marks which would indicate the existence of the drain.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment affirmed.