text:
    Irving Sternlieb, Respondent, v. Normandie National Securities Corporation, Appellant.
    (Submitted December 7, 1933;
    decided January 9, 1934.)

      Aaron H. Marx and Frank L. Miller for appellant.
    An infant, liable for his torts, is estopped from disaffirming a contract resulting from his fraud. (Falk v. MacMasters, 197 App. Div. 357; Chasser v. Hutton, 139 Misc. Rep. 623; Shenkein v. Fuhrman, 80 Misc. Rep. 179;
      Wyatt v. Lortscher, 217 App. Div. 224; N. Y. Building & Loan Co. v. Fisher, 23 App. Div. 363; Fitts v. Hall, 9 N. H. 441; Lewis v. Van Cleve, 302 Ill. 413; Williamson v. Jones, 43 W. Va. 562; Whitington v. Right, 9 Ga. 23; Asher v. Bennett, 143 Ky. 361; LaRosa v. Nichols, 92 N. J. L. 375; Confederation v. Kinnear, 23 Ont. App. 497.)

      Caruthers Ewing, amicus curiae.

    A court’s refusal to hold an infant to his contractual obligations does not entitle one, apparently an adult, but not so in fact, to invoke judicial aid in the successful perpetration of a fraud on one with whom he has dealt. (Rice v. Butler, 160 N. Y. 578; Falk v. MacMasters, 197 App. Div. 357; Chasser v. Hutton, 139 Misc. Rep. 623; Wisconsin Loan & Finance Corp. v. Goodnough, 201 Wis. 101; International Land Co. v. Marshall, 98 Pac. Rep. 951.)

      Emanuel Redfield and Dalton Dwyer for respondent.
    A misrepresentation by an infant that he is over age is not a good defense. (Brown v. McCune, 5 Sandf. 224; Conroe v. Birdsall, 1 Johns. 127; Sims v. Everhardt, 102 U. S. 300; Myers v. Hurley Motor Co., 273 U. S. 18; McCarthy v. McCluney, 219 Ala. 211; Tobin v. Spann, 85 Ark. 556; Lee v. Hibernia Sav. & Loan Assn., 177 Cal. 656; Williams v. Shettler Co., 98 Cal. App. 282; Creer v. Active Auto Exchange, 99 Conn. 266; Knudson v. General Motorcycle Sales Co., 230 Mass. 54; Loan Assn. v. Black, 119 N. C. 323; Whitcomb v. Joslyn, 51 Vt. 79.)
   Crane, J.

Again we have the troublesome question arising from the repudiation by a young gentleman, just under twenty-one, of his contract of purchase. On the 21st day of September, 1929, the plaintiff purchased from the defendant five shares of the capital stock of the Bank of United States and of the Bankus Corporation, for' which he paid $990. In his complaint he alleges that he was under twenty-one years of age. After the stock had dropped in value until it was worthless, this young plaintiff further alleges that on the 14th day of September, 1932, he notified the defendant that he rescinded his purchase, and that he was ready to tender and return the certificates.

In its answer the defendant as a defense alleges that the plaintiff falsely and fraudulently represented and warranted to the defendant before and at the time of purchase he was over twenty-one years of age, and that the defendant relied upon these statements in parting with the stock.

The action was brought in the Municipal Court of the City of New York. The plaintiff moved to strike out the defense. The motion was denied, and affirmed, on appeal, by the Appellate Term. The Appellate Division, however, reversed this action of the two lower courts and has certified to this court the following question: Is the separate and distinct defense set forth in the answer herein sufficient in law?”

That young men, nearly twenty-one years of age, actively engaged in business, can at will revoke any or all of their business transactions and obligations, thereby causing loss to innocent parties dealing with them, upon the assumption or even the assurance that they were of age, has not appealed to some courts, and has been adopted without much enthusiasm by others. This State from the earliest days has followed the common-law doctrine, adopted at a time when young men were not so actively engaged in trade and in lucrative occupations as at present. The opportunities for making a living by barter and sale were not so numerous for them as now.

At common law a male infant attains his majority when he becomes twenty-one years of age, and all unexecuted contracts made by him before that date, except for necessaries, while not absolutely void, are voidable at his election. In an action upon a contract made by an infant he is not estopped from pleading his infancy by any representation as to his age made by him to induce another person to contract with him. (Inter national Text Book Co. v. Connelly, 206 N. Y. 188.) Neither could the infant be sued for damages in tort by-reason of any false representations made in inducing or procuring the contract. For his torts generally, where they have no basis in any contract relation, an infant is hable, just as any other person would be, but the doctrine is equally well settled that a matter arising ex contractu, though infected with fraud, cannot be changed into a tort, in order to charge an infant, by a change of the remedy. (Collins v. Gifford, 203 N. Y. 465.) The only difference between an executory and an executed contract appears to be, that in the former the infant may disaffirm at any time short of the period of the Statute of Limitations, unless by some act he has ratified the contract, whereas in the latter, he must disaffirm within a reasonable time after becoming of age, or his silence will be considered a ratification.

This case pertains to an executed contract for the purchase of stock which the plaintiff has disaffirmed within a reasonable time. The distinction which the appellant would have us make between these well-established authorities and the present case is the fact that the infant is here the plaintiff seeking relief from the courts and should do equity before obtaining relief. That is, while as a defendant the courts will protect him from further liability on his contracts, they will not aid him in getting back money or property which will give him profit or gain through his fraudulent representations regarding his age. This was the view taken by the Appellate Division of the Second Department in Falk v. MacMasters (107 App. Div. 357).

This court, however, has not gone so far. The nearest approach to the point is Rice v. Butler (160 N. Y. 578). In that case the infant was a plaintiff seeking to recover installments paid upon a bicycle which he offered to return. The court recognized the right of the infant to rescind bis bargain and get back his money, insisting, however, that he must pay for the use of, or wear and tear on, the machine. The defendant was allowed to deduct this from the money paid by the infant.

The same principle was followed in Myers v. Hurley Motor Co. (273 U. S. 18), where it was held that a contract made by an infant, induced by his fraudulent representations of his age, may be disaffirmed by him, and an action maintained to recover money paid under it. However, the infant must do equity and make restitution, not only of the profits and advantages which he has received, if possible, but also for the use or deterioration of property, if it is to be returned to the defendant. In that case, a young man, twenty years of age, represented that he was twenty-four, and contracted to buy a Hudson touring car, on which he had made certain installment payments. After becoming of age, he disaffirmed his contract and demanded the return of the money paid, offering to return the car. The Supreme Court held, while he was entitled to the relief asked, the defendant was also entitled to recoup out of the infant’s money damages for deterioration of the car, or the value of its use. In Rice v. Butler (supra) there was no allegation or proof of false and fraudulent representations as to his age by the infant. In Myers v. Hurley Motor Co, (supra) the fraud was part of the defense. We do not see how the allegation of fraud justifies any distinction of principle. It is a mere element or feature of the case. The fundamental principle is the same, whether the infant be plaintiff or defendant. He may repudiate and rescind bis contract upon becoming of age, whether he has made false representations regarding his years or not, and in any instance, the party with whom he had his dealings is entitled to recoup under certain circumstances.

That the false representation regarding age does not prevent rescission, even when the infant be the plaintiff, is the holding of the courts in the majority of our States. (Creer v. Active Auto Exchange, Inc., 99 Conn. 266; Knudson v. General Motorcycle Sales Co., 230 Mass. 54; Whitcomb v. Joslyn, 51 Vt. 79; McCarty-Greene Motor Co. v. McCluney, 219 Ala. 211; Steigerwalt v. Woodhead Co., 186 Minn. 558; Arkansas Reo Motor Car Co. v. Goodlett, 163 Ark. 35; Carpenter v. Carpenter, 45 Ind. 142.)

That the infant is not hable in tort for false representations of age inducing a contract, see Slayton v. Barry (175 Mass. 513); Nash v. Jewett (61 Vt. 501); Monumental Building Assn. v. Herman (33 Md. 128, 133); Greensboro Morris Plan Co. v. Palmer (185 N. C. 109); Leslie, Ltd., v. Sheill ([1914] 3 K. B. 607).

Some of the State courts, however, have taken a different view, and find that fraudulent representations regarding age estop an infant from maintaining an action for relief. (Pinnacle Motor Co. v. Daugherty, 231 Ky. 626; La Rosa v. Nichols, 92 N. J. L. 375; Tuck v. Payne, 159 Tenn. 192.)

Like so many questions of policy, there is much to be said upon both sides, and the necessities of one period of time are not always those of another. The law, from time out of mind, has recognized that infants must be protected from their own folly and improvidence. It is not always flattering to our young men in college and in business, between the ages of eighteen and twenty-one, to refer to them as infants, and yet this is exactly what the law considers them in their mental capacities and abilities to protect themselves in ordinary transactions and business relationships. That many young people under twenty-one years of age are improvident and reckless is quite evident, but these defects in judgment are by no means confined to the young. There is another side to the question. As long as young men and women, under twenty-one years of age, having the semblance and appearance of adults, are forced to make a living and enter into business transactions, how are the persons dealing with them to be protected if the infant’s word cannot be taken or recognized at law? Are business men to deal with young people at their peril? Well, the law is as it is, and the duty of this court is to give force and effect to the decisions as we find them. Some States have met the situation by legislation. (Iowa Code, § 3190 [1897]; § 10494 [1927]; Kansas Rev. Stat. 38-103 [1923]; Compiled Laws of Utah, § 3957 [1917], Revised Stat. [1933] of Utah, 14r-l-3; Compiled Stat. of Wash. § 5830 [1922], 7 Rem. Rev. Stat. of Washington [1933], § 5830.) Let us refer to the Iowa Code, as a fair example, taken from the case of Friar v. Rae-Chandler Co. (192 Iowa, 427, at p. 428):

“ Sec. 3189. A minor is bound not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract, and remaining within his control at any time after his attaining his majority, except as otherwise provided.

Sec. 3190. No contract can be thus disaffirmed in cases where, on account of . the minor’s own misrepresentations as to his majority, or from his having engaged in business as an adult, the other party had good reason to believe him capable of contracting.”

We, therefore, conclude that the law of this State, in accordance with the trend of most of the authorities, is to the effect that the defense pleaded in the answer is insufficient and was properly stricken out by the Appellate Division.

The order should, therefore, be affirmed, with costs.

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

Order affirmed.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    John E. Datz, Respondent, v. Economy Cotton Goods Stores, Inc., Appellant.
    (Submitted December 15, 1933;
    decided January 9, 1934.)

      Emanuel Levy and Benjamin H. Berman for appellant.
    Since the issues involved in each of the actions are identical, the County Court should have consolidated the actions. (Civ. Pr. Act, §§ 69, 74, 96, 97; Greene v. Beacorn, 145 Misc. Rep. 870; Sternberg v. Bergman, 140 Misc. Rep. 569; Gurry v. Earll, 209 App. Div. 205; Melker v. Guarino, 135 Misc. Rep. 548.)

      Edward E. Edstrom for respondent.
    The granting or denying of a motion to consolidate rests in the discretion of the court. (Dexter Sulphite Pulp & Paper Co. v. Hearst, 206 App. Div. 101.) The County Court did not have power to consolidate these cases. (Blumenthal & Co. v. Tiedemann & Sons, Inc., 118 Misc. Rep. 560; Civ. Pr. Act, § 1572.)
   O’Brien, J.

Plaintiff instituted an action in the County Court for rent and later began another action in Justice’s Court to recover rent during a time subsequent to the time embraced in the action in the County Court. In both actions the defense pleaded was the same. Defendant moved in the County Court for an order consolidating the two actions and its motion was denied. The Appellate Division affirmed by a divided court and certified the question whether power resides in the County Court to consolidate the actions.

Section 96 of the Civil Practice Act provides in the broadest terms that actions may be consolidated whenever it can be done without prejudice to a substantial right, and section 97 in these words confers this power specifically upon the Supreme Court: “ Where one of the actions is pending in the Supreme Court and another is pending in another court, the Supreme Court, by order, may remove to itself the action in the other court and consolidate it with that in the Supreme Court.” By sections 69 and 74 of the Civil Practice Act the County Court is vested with such power as would be possessed by the Supreme Court under section 97 if these two actions were pending in the Supreme Court and in the Justice’s Court. Section 97 of the Civil Practice Act is a re-enactment of section 818 of the Code of Civil Procedure and sections 69 and 74 of the Civil Practice Act are substantial re-enactments of section 348 of the Code of Civil Procedure. Section 1572 of the Civil Practice Act directs: A provision of this act which is a substantial re-enactment of a provision of the Code of Civil Procedure which, by the terms of such code, was expressly made applicable to a specified court or courts, shall be applicable to the same court or courts in the same manner and to the same extent as the former provision.” Although the proposition seems quite plain that the Supreme Court can consolidate an action pending in it with an action pending in another court of record and equally clear that the County Court possesses the same power, the contention is made that, by reading section 1572 of the Civil Practice Act with section 3347, subdivisions fourth and sixth, of the Code of Civil Procedure, the power is limited to the consolidation of actions pending in the Supreme Court with actions pending in other courts of record and that, since a Justice’s Court is not a court of record, actions pending therein are not included within the provisions of section 97 of the Civil Practice Act as enlarged by sections 69 and 74 of the same statute. This argument might be sound except for the sweeping provisions of section 96 of the Civil Practice Act. This section is new. Nothing like it was included within the Code of Civil Procedure. It authorizes consolidation “ whenever it can be done without prejudice to a substantial right.” The power conferred by this new section appears to be sufficiently comprehensive to include the right of the County Court to consolidate with an action therein pending another action even when the other action is pending in a court not of record. The purpose of section 96 is to eliminate technicalities, multiplicities of actions and delays and to protect substantial rights.

The order of the Appellate Division and that of the County Court should be reversed and the motion granted, with costs to appellant in all courts, and the question certified answered “ yes.”

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

Ordered accordingly.


author: Pound, Ch. J.

text:
    The People of the State of New York, Respondent, v. Charles Smith, Appellant.
    (Argued December 11, 1933;
    decided January 9, 1934.)

      Albert E. Kane for appellant.
    The ordinance is unconstitutional. (People ex rel. Duryea v. Wilber, 198 N. Y. 1; Wright v. Hart, 182 N. Y. 330; Giantasio v. Kaplan, 255 N. Y. Supp. 102; People v. Smith, 225 N. Y. Supp. 528; Ives v. South Buffalo Ry. Co., 201 N. Y. 271; Atkins v. Hertz Drivurself Stations, 261 N. Y. 352; City of Buffalo v. Till, 182 N. Y. Supp. 418.)

      Thomas G. T. Crain, District Attorney (Joshua Egelson of counsel), for respondent.
    The ordinance is constitutional. (People ex rel. Doyle v. Atwell, 232 N. Y. 96; Commonwealth v. Davis, 162 Mass. 510; 167 U. S. 43; Ives v. South Buffalo Ry. Co., 201 N. Y. 271; Klein v. Maravelas, 219 N. Y. 383; City of Buffalo v. Till, 192 App. Div. 99; Atkins v. Hertz Drivurself Stations, Inc., 261 N. Y. 352; Matter of Gianatasio v. Kaplan, 142 Misc. Rep. 611; People v. Klinck Packing Co., 214 N. Y. 121; Matter of Stubbe v. Adamson, 220 N. Y. 459; Miller v. Wilson, 236 U. S. 373; Radice v. New York, 264 U. S. 292; Euclid v. Ambler Co., 272 U. S, 365; Union Oil Co. v. City of Portland, 198 Fed. Rep. 441; Atchison, Topeka & Santa Fe Ry. Co. v. Matthews, 174 U. S. 96; Gitlow v. People, 268 U. S. 652.)
   Pound, Ch. J.

We held in People v. Smith (259 N. Y. 48, 50) that an ordinance of the city of New York which prohibited the holding of religious meetings in the public streets of New York except by licensed clergymen, lay readers and some others who had obtained a permit from the Police Commissioner did not apply to an atheist, who talked atheism in the public streets of New York. We said by Crane, J.: “ Instead of gathering an assembly for public worship or exhortation to public worship, he was doing just the reverse; he was denouncing worship in any form and calling upon his hearers to desert such a practice. The ordinance did not apply to him.” The ordinance (New York Code of Ordinances, ch. 23, art. 3, § 20) has since been amended to authorize the Commissioner to grant a permit to certain persons to preach or expound atheism in the parks, streets and other public places.

Defendant, not having applied for a permit, has been convicted of expounding atheism in the street without such a permit. He now challenges the constitutionality of the ordinance as requiring permits for street speaking from exhorters of atheism and religion but not from speakers on other topics. He asserts that it deprives him of the equal protection of the laws and of freedom of speech.

“It is too well settled by judicial decisions in both the State and Federal courts that a municipality may pass an ordinance making it unlawful to hold public meetings upon the public streets without a permit therefor to require discussion. The right to pass such ordinance is a valid exercise of legislative power, properly delegated to the municipal authorities.” (People ex rel. Doyle v. Atwell, 232 N. Y. 96, 100.)

This ordinance is not aimed against free speech. It is directed towards the manner in which the street may be used. (Commonwealth v. Davis, 162 Mass. 510; affd., 167 U. S. 43.) The legislative power might forbid public meetings and speaking in the streets entirely. It may limit the use of the streets to certain purposes.

If a reasonable difference may be found between classes of those who may have permits for street speaking and those who are not required to have such permits the courts will not upset the legislative classification. (Miller v. Wilson, 236 U. S. 373; People v. Havnor, 149 N. Y. 195.) The passion, rancor and malice sometimes aroused by sectarian religious controversies and attacks on religion seem to justify especial supervision over those who would conduct such meetings on the public streets. That the ordinance does not cover all street meetings is no objection to a reasonable classification. Practical exigencies and common experience may permit the recognition of degrees of harm and the limitation of regulation to classes where the need is deemed to be clearest. (Radice v. New York, 264 U. S. 292.)

The judgment should be affirmed.

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

Judgment affirmed.


author: Crane, J.

text:
    In the Matter of Frank J. Clancy, Respondent, against John J. Halleran, as Commissioner of Public Works of the City of New York, Borough of Queens, et al., Appellants.
    (Submitted December 5, 1933;
    decided January 9, 1934.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Henry J. Shields and Thomas W. A. Crowé of counsel), for appellants.
    The petitioner’s situation is controlled by section 31 of the Civil Service Law (Cons. Laws, ch. 7). There are no vacant positions in the municipal civil service to which the petitioner could be appointed: (Matter of Schaefer v. Rathmann, 237 App. Div. 491; 262 N. Y. 40; Matter of Koso v. Greene, 260 N. Y. 491; Matter of Stutzbach v. Coler, 168 N. Y. 416.)

      Louis Fieldman and George J. Gruenberg for respondent.
    Section 6 of article V of the Constitution of the State of New York and section 21 of the Civil Service Law grant, a disabled war veteran preference in retention of employment. (Matter of Stutzbach v. Coler, 168 N. Y. 416; People ex rel. Davison v. Williams, 213 N. Y. 130; Matter of Warner v. Hall, 141 Misc. Rep. 294; Pratt v. Phelan, 73 N. Y. Supp. 823; Matter of Seeley v. Stevens, 190 N. Y. 158.)
   Crane, J.

On May 1, 1930, Frank Clancy was appointed by the President of the borough of Queens to the position of inspector of regulating, grading and paving, grade III, in the department of public works, borough of Queens, city of New York, at the annual salary of $2,400. He entered upon the performance of his duties, continuing until March 10, 1932, when the position was abolished in the interests of economy. The notice sent to him stated: In consequence of lack of work and lack of appropriation your services as Inspector of Regulating, Grading and Paving are no longer required and are, therefore, terminated at the close of business March 10, 1932.” Sixteen other inspectors receiving the same or higher salaries, and appointed, some before, and some after, Clancy’s appointment, were also removed for like cause, and the Civil Service Commission of the city of New York notified that their services were terminated, due to the lack of work and lack of appropriation. Clancy was notified by the Civil Service Commission that his name had thereupon been laced upon the appropriate preferred eligible list.

Claiming to be a disabled war veteran with the benefits of such under the Civil Service Law (Cons. Laws, ch. 7), the petitioner brought this proceeding to be reinstated and taken back into the department, although there be no work, no appropriation and no position for him to fill. I say no position, because the relator in his moving papers has failed to show that there is any vacant position in the department which he can fill, and insists that he be restored as an inspector in his old position, even if older men in point of service, not veterans, must be removed to make way for him.

The so-called “ Veterans Acts,” which rightly give preference in appointment and in retention to those who have faithfully served their country, do not carry the privilege to this extent. If positions are to be abolished, the veteran must be the last one, of those selected, to go, and even then, if there be another vacant place in the department which he can fill, he must be given it. Otherwise, his name goes upon a preferred fist from which appointment will be made to fill the next vacancy. This is the sum and substance of the civil service provisions relating to veterans. Never could it have been the intention of those interested in the welfare of the war veteran that he should be kept when money gave out, and positions were abolished, by the removal of all others not veterans, longer in the service of the city or State. By this process we can imagine a situation where none would be left in the municipal service but disabled war veterans. If this be the intention of the Legislature, it should be clearly expressed, especially in view of the decisions of this court construing the Civil Service Law to the contrary.

Section 21 of the Civil Service Law reads: “ In every public department and upon all public works of the state of New York and of the cities, counties, towns and villages thereof, any honorably discharged soldiers, sailors, marines or nurses of the army, navy or marine corps of the United States disabled in the actual performance of duty in any war, to an extent recognized by the United States veterans’ bureau, * * * shall be entitled to preference in appointment and promotion without regard to their standing on any list from which such appointment or promotion may be made,” and so forth.

Section 22 relates to the removal of veterans, and includes others than those specified in section 21, by taking in the volunteer firemen. No removal of these men from any position can be made except for incompetency or misconduct shown after a hearing upon due notice and upon stated charges. This assumes, of course, that the position is to continue. If, however, the place or position becomes unnecessary or is abolished for reasons of economy or otherwise, then “ the said honorably discharged soldier, sailor or marine or volunteer fireman holding the same shall not be discharged from the public service but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor, and it is hereby made the duty of all persons clothed with power of appointment to make such transfer effective.”

The Civil Service Law was adopted in 1899, wherein section 21, above referred to, was substantially section 20. By the Laws of 1919, chapter 251 (subsequently amended), section 31 was added to the Civil Service Law to make provision for those employees whose positions had been abolished. So far as material it reads: “Any person who while holding a position in the competitive class under the civil service law or rules, has been separated from the service through the abolition of a department * * * . or whose position is abolished or made unnecessary * * * shall be deemed to be suspended without pay, which suspension shall be made in the inverse order of original appointment in the service, and shall be entitled to have his name entered upon a preferred list.”

Upon such a preferred list, pursuant to this section, the municipal Civil Service Commission placed Clancy’s name after the abolition of his office, as heretofore stated.

Intrepreting or enforcing the language of the above section, this court has held that, although the Civil Service Law (§ 22) requires a veteran employee to be transferred for duty in such position as he may be fitted to fill, there must be another position vacant to entitle him to a transfer. A public official is not obliged to discharge other employees in order to open a position for a veteran. (Matter of Breckenridge, 160 N. Y. 103, 108; Matter of Stutzbach v. Coler, 168 N. Y. 416; Matter of Seeley v. Stevens, 190 N. Y. 158; People ex rel. Davison v. Williams, 213 N. Y. 130; Matter of Devins, 233 N. Y. 690.)

The burden of proving that another position exists, to which he can be transferred, and that he is able to fill it, rests upon the veteran. (Matter of Jones v. Willcox, 80 App. Div. 167.)

Matter of Breckenridge (supra) related to an abolished position in the Bureau of the Fire Marshal of the city of New York. The Veterans Act ” controlling was chapter 184 of the Laws of 1898, being the same provision, in substance, now embodied in section 22 of the Civil Service Law, above quoted. This court said, regarding the removed veteran’s claim to continuance in some other position, “ If the petitioner demands that he be transferred to some branch of the public service other than that of the Fire Department, manifestly, the respondent cannot comply with it. But, if he demands that he be retained by the respondent to perform similar duties, he has failed to show that any position exists, which he might fill, and where the compensation is the same. Indeed, his counsel puts his case for him very frankly, when he says, The respondent is bound to make a place for the appellant, even if it should be necessary to dismiss from the service others, who are not protected under the veteran acts/ That is a view, which I think we should not take of this act. I do not think we should impute to the legislature the absurdity of intending to saddle an unnecessary officeholder upon the city; or the injustice of intending that some faithful and, possibly, more efficient officer, who happens not to be a veteran, must be discharged to make room for the incumbent of the abolished office. The legislative intent was to secure the retention in the public service of the veteran, who was thrown out of office by its abolition, ‘ in such position as he may be fitted to fill, receiving the same compensation therefor;’ which seems, necessarily, to imply that a vacancy in such a position must exist.”

The language in Matter of Stutzbach v. Color (supra) might in some parts be broad enough to justify the petitioner’s claim, yet the reference to the Breckenridge case indicates that the rule there laid down was not intended to be limited or modified.

Likewise, in People ex rel. Davison v. Williams (supra), the Breckenridge case was quoted and followed, while, as late as 1922, in Matter of Devins (supra), the law of the Breckenridge case was applied to the position of factory inspector in the office of the Industrial Commissioner of the Department of Labor.

To summarize, we conclude that Mr. Clancy, a disabled war veteran, having been suspended because his position as inspector of grading and paving was abolished for lack of work and appropriation, was entitled to have his name placed upon the preferred list, created pursuant to section 31 of the Civil Service Law. This was done; so in this particular he can have no complaint. As he seeks reinstatement, however, under section 22 of the Civil Service Law, claiming that there is another position which he is able to fill, existing in the department, his application must be denied, as he fails to show the existence of any such position, the salary connected therewith, or that there is a position such as he can fill. The whole theory of his application and the purport of his petition is, that men, older in service, not veterans, must be removed to make place for him.

For the reasons here stated, the order of the Appellate Division and that of the Special Term should be reversed, and the petition for an order of mandamus denied, with costs in all courts.

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

Ordered accordingly.


author: Hubbs, J.

text:
    Crossman Company, Respondent, v. Florence H. Rauch, Appellant.

      (Submitted December 8, 1933;
    decided January 9, 1934.)

      Thomas J. Kavanagh and Thomas P. Mackey for appellant.
    Section 15 of the Personal Property Law (Cons. Laws, ch. 41) exempts the proceeds of the policy of insurance and all benefits accruing thereunder to the appellant from levy under execution and they are not subject to legal process. (Brearley School v. Ward, 201 N. Y. 358; N. Y. Plumbers Specialty Co. v. Stein, 140 Misc. Rep. 161; Chatham Phenix Nat. Bank & Trust Co. v. Crosney, 251 N. Y. 189; U. S. Mortgage & Trust Co. v. Ruggles, 258 N. Y. 32; Wittman v. Littlefield, 142 Misc. Rep. 916; 235 App. Div. 831; Surace v. Danna, 248 N. Y. 18; Kittel v. Domeyer, 175 N. Y. 205; Amberg v. Manhattan Life Ins. Co., 171 N. Y. 314; Bull v. Case, 165 N. Y. 578; Matter of Di Donato v. Rosenberg, 221 App. Div. 624; Matter of Citizens Trust Co., 134 Misc. Rep. 683; Lind v. Miller, 145 Misc. Rep. 477.) The intention of the parties to the insurance contract, of which the trust agreement was a part, was to guarantee to the beneficiary the benefits of the policy in their entirety. The contract should be so construed as to effectuate rather than defeat that intention. (Matter of Gates, 51 App. Div. 350; Board of Education v. Van Zandt, 119 Misc. Rep. 124; 234 N. Y. 644; Assn. Protection Adirondacks v. MacDonald, 253 N. Y. 234; Yates County Bank v. Carpenter, 119 N. Y. 550; Matter of Morse, 206 Fed. Rep. 350; Goldstein v. Standard Acc. Ins. Co., 204 App. Div. 452; Rann v. Home Ins. Co., 59 N. Y. 387; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Kratzenstein v. Western Assur. Co., 116 N. Y. 54; Herrman v. Merchants Ins. Co., 81 N. Y. 184; Rickerson v. Hartford Fire Ins.

      Co., 149 N. Y. 307; Finery Silk Stocking Co. v. Ætna Ins. Co., 227 App. Div. 39.)

      Albert Hirst for New York State Life Underwriters Association, amicus curios.

    Modes of settlement are not trusts; payments under them are not “ income from trust funds ” within the meaning of section 684 of the Civil Practice Act. If by agreement these payments are made unassignable they are necessarily exempt from levy of process. (Black v. New York Life Ins. Co., 126 N. Y. Supp. 334; Uhlman v. New York Life Ins. Co., 109 N. Y. 421; Brown v. Spohr, 180 N. Y. 201; Martin v. Funk, 75 N. Y. 134; Matson v. Abbey, 70 Hun, 475; 141 N. Y. 179; Greene v. Greene, 125 N. Y. 506; Young v. Young, 80 N. Y. 422; Sullivan v. Sullivan, 161 N. Y. 554; Eadie v. Slimmon, 26 N. Y. 9; Barry v. Equitable Life Assur. Soc., 59 N. Y. 587; Brummer v. Cohn, 86 N. Y. 11; Smillie v. Quinn, 90 N. Y. 492; Baron v. Brummer, 100 N. Y. 372; Frank v. Mutual Life Ins. Co., 102 N. Y. 266; Brick v. Campbell, 122 N. Y. 337; Amberg v. Manhattan Life Ins. Co., 171 N. Y. 314.) The language of the agreement is sufficient to exempt all the payments from levy of execution. (Fleischman v. Furgueson, 223 N. Y. 235; Stockwell v. National Bank of Malone, 36 Hun, 583; Surace v. Danna, 248 N. Y. 18; Diamond v. Palmer, 79 Iowa, 578; Matter of N. Y. State Gas & Electric Corp. v. Gilchrist, 209 App. Div. 771; Kane v. Bloodgood, 7 Johns. Ch. 90; 8 Cow. 360; Electric Reduction Co. v. Lewellyn, 8 Fed. Rep. [2d] 91; 275 U. S. 243; Bronson v. Syverson, 88 Wash. 264; Epping v. Columbus, 117 Ga. 263.) Exemption laws, and especially laws granting exemption to life insurance, should be liberally construed in order to effectuate the benevolent intent of the Legislature. (Carpenter v. Herrington, 25 Wend. 370; Matter of Keough, 42 Misc. Rep. 387; Ford v. Johnson, 34 Barb. 364; Surace v. Danna, 248 N. Y. 18; Matter of Pinals, 38 Fed. Rep. [2d] 117; Smith v. Metropolitan Life Ins. Co., 43 Fed. Rep. [2d] 74; Chatham Phenix Nat. Bank & Trust Co. v.
      Crosney, 251 N. Y. 189; Hickman v. Hanover, 33 Fed. Rep. [2d] 873.)

      William E. Vogel and Joseph T. King for respondent.
    The income from the trust fund is subject to garnishee execution pursuant to section 684 of the Civil Practice Act. (Hamilton v. Drogo, 241 N. Y. 401; Matter of Havemeyer, 127 Misc. Rep. 197; Matter of Flint, 118 Misc. Rep. 354; Schaefer v. Fisher, 137 Misc. Rep. 420; Cotter v. Sheffield Farms Co., 129 Misc. Rep. 600; Brearley School v. Ward, 201 N. Y. 358; Matter of Ungrich, 201 N. Y. 415; Hoye v. Hipkins, 182 App. Div. 901; Judis v. Martin, 218 App. Div. 402; Matter of Daggett, 130 Misc. Rep. 635.)
   Hubbs, J.

The husband of the judgment debtor appellant procured from the Travelers Insurance Company of Hartford, Connecticut, an insurance policy upon his life for $50,000, payable after his death to his widow, the appellant, in two hundred and forty monthly installments, each of $6.25 per $1,000 of the proceeds of the policy, equivalent to $312.50 per month. Attached to and made a part of the policy was an agreement, which reads in part: “ It is agreed that The Travelers Insurance Company, Hartford, Connecticut, shall receive such proceeds of the above contract as the Beneficiary hereinabove named shall become entitled to, if not less than One Thousand Dollars, and in consideration thereof shall pay at the Home Office of the Company at Hartford, Connecticut, to the said Beneficiary the installments herein-above set forth. * * * The Beneficiary cannot assign or commute the payments herein provided, or any of them, unless such right shall be given by the Insured in writing and shall be endorsed upon or attached to the contract by the Company at its Home Office during the lifetime of the Insured. * * *

The proceeds received in trust by the Company are not transferable, subject to encumbrance, nor to legal process.”

The policy and agreement are to be construed in accordance with the provisions of section 15 of the Personal Property Law (Cons. Laws, ch. 41), which reads in part: Provided, however, that when the proceeds of a life insurance policy, becoming a claim by death of the insured, are left with the insurance company under a trust or other agreement, the benefits accruing thereunder after the death of the insured shall not be transferable, nor subject to commutation or incumbrance, nor to legal process except in an action to recover for necessaries, if the parties to the trust or other agreement so agree.”

The question for determination is whether the entire amount payable to the widow of the insured under the terms of the policy and agreement is exempt from appropriation by the Sheriff under an order and garnishee execution issued out of the Supreme Court which directs the Sheriff to collect and the Travelers Insurance Company to pay ten per cent of so much of the total monthly payments being made to appellant as constitutes income. The Special Term decided that the part of the monthly payments denominated income is subject to garnishee execution. The Appellate Division affirmed by a divided court and certified the following question to this court; “ Is any part of the monthly payments due to the judgment debtor by the Travelers Insurance Company under the agreement of December 2nd, 1930, as set forth in the papers on appeal, income to the judgment-debtor so as to be subject to garnishee execution? ”

Section 684 of the Civil Practice Act provides that in certain cases a judgment creditor may apply to a court for an order making the income from trust funds amounting to $12 or more per week subject to execution to the extent of not more than ten per cent thereof. That section is, in effect, the same as section 1391 of the Code of Civil Procedure, as amended by chapter 148 of the Laws of 1908. Prior to September 1st, 1908, “ income from trust funds ” was exempt from levy under execution. (Brearley School v. Ward, 201 N. Y. 358.) The amendment of section 1391 of the Code of Civil Procedure by chapter 148 of the Laws of 1908 (now section 684 of the Civil Practice Act) changed the law in regard to the exemption of income from trust funds to the extent therein specified.

Section 15 of the Personal Property Law was amended by chapter 327 of the Laws of 1911 by the addition thereto of that part of the section above quoted. That amendment anticipates that the proceeds of a life insurance policy becoming a claim by the death of the insured may be left with the insurance company under a trust agreement or under some different form of agreement not involving a trust.

Where a trust agreement is involved, the amendment has the effect of exempting the benefits accruing thereunder from the provisions of section 1391 of the Code of Civil Procedure, now section 684 of the Civil Practice Act, if the parties to the trust * * * agreement so agree.”

Where the agreement involved is other than a trust agreement, if the benefits accruing thereunder be deemed to constitute a debt or a form of income subject to garnishment,- those benefits are likewise exempted from the provisions of section 684 “ if the parties to the * * * agreement so agree.”

The enactment of the amendment to section 15 of the Personal Property Law did not repeal section 1391 of the Code of Civil Procedure, but established an exemption from its provisions. (Cf. Chatham Phenix Nat. Bank & Trust Co. v. Crosney, 251 N. Y. 189, 195.)

Thus far it has been decided that while the principal sum of $50,000, the amount received by the insurance company under the agreement, is exempt from levy under an execution, the income thereon and the benefits accruing therefrom are not exempt as the trust agreement does not so provide. We are of the opinion that such construction of the agreement is too narrow, and contrary to the public policy of the State as evidenced by the enactment of the amendment to section 15 of the Personal Property Law and the decisions of our courts.

The judgment against appellant upon which the garnishee execution was issued was recovered after the amendment of section 15 took effect and the insurance policy was issued after such amendment.

If the quoted provision of section 15 of the Personal Property Law be deemed ambiguous, it should be liberally construed in order to effectuate the humane purpose embodied in the statute. The spirit of the act should control its construction so that “ the humane purpose of preserving to the unfortunate or improvident debtor or his family the means of obtaining a livelihood and prevent them from becoming a charge upon the public ” (Hickman v. Hanover, 33 Fed. Rep. [2d] 873) may be effectuated. (Carpenter v. Herrington, 25 Wend. 370; Surace v. Danna, 248 N. Y. 18. Cf. Matter of Pinals, 38 Fed. Rep. [2d] 117; affd., sub nom. Smith v. Metropolitan Life Ins. Co., 43 Fed. Rep. [2d] 74.)

We think, however, that the act in question is a clear and unambiguous statement of the purpose of the Legislature to exempt from legal process, except in an action to recover for necessaries, tne benefits accruing after the death of the insured under a trust or other agreement relating to the proceeds of a fife insurance policy left with the insurance company where the parties to the trust or other agreement agree that such benefits shall be so exempt.

The prevailing opinion in the Appellate Division, in paraphrasing the amendment to section 15 of the Personal Property Law, has substituted the word proceéds ” for the word “ benefits ” in the clause benefits accruing thereunder after the death of the insured as contained in the act and has thereby suggested an ambiguity not present in the act.

The sole question for our determination is whether the provision, the proceeds received in trust by the company are not transferable, subject to encumbrance, nor to legal process,” in the agreement between the insured and the insurance company, has the effect of exempting from legal process, except in an action to recover for necessaries, the benefits accruing to the beneficiary after the death of the insured under the agreement in question.

It seems clear to us that the transfer by the insured to the insurance company of the proceeds of the policy, under an agreement obligating the company to pay to the beneficiary $312.50 in monthly installments for 240 months, constituted a transfer of not only the face value of the policy, $50,000, but also all interest and income that might accrue thereon and that the provision of the agreement that the proceeds received in trust by the company are not transferable, subject to encumbrance, nor to legal process ” includes accruing interest and income as well as principal.

Under the agreement, the company was to receive the face value of the policy, and the right to the income thereon and the beneficiary after the death of the insured was to receive the specified 240 monthly payments of $312.50 each. She never was to become entitled to the face value of the policy as an entity. The agreement of the company to make the monthly payments and the payment thereof was to constitute as to her the proceeds of the policy and the proceeds, under the wording of the agreement and the provisions of the statute, were to be exempt from legal process, except in an action to recover for necessaries.

The transfer of the proceeds of the policy constituted a transfer of the benefits accruing thereunder ” and the parties to the trust or other agreement so agree ” by necessary implication.

Within the meaning of the agreement the transfer of the “ proceeds ” constituted a transfer of the interest earned by the investment of such proceeds, as an incident of the transfer.

The obligation of the insurance company constitutes a debt from the company to appellant, the beneficiary, under the policy. Although the word trust is used, the agreement is not in fact a trust agreement. The monthly payments which the company contracted to pay are definitely fixed in amount. They are not income on personal property. They constitute deferred payments which the company agreed to make to the beneficiary in consideration of the receipt at the death of insured of $50,000, the face value of the policy. The agreement provides: “ The proceeds received by the company under this agreement shall be invested with its general corporate funds as a part thereof in securities in which such corporate funds may be invested.” (Richards on the Law of Insurance [4th ed.], § 385, p. 684; Uhlman v. New York Life Ins. Co., 109 N. Y. 421.)

Interest accruing on a principal sum which is exempted is also exempt. (Surace v. Danna, 248 N. Y. 18.) So too, the term debt or liability includes interest. (Brown v. Lamb, 6 Metc. 203, 210. Cf. 17 C. J. 1372, note 32 [1], where many cases are collated.)

Dividends or profits on shares pass with the transfer of the shares as incident thereto by legal operation. (Kane v. Bloodgood, 7 Johns. Ch. 90; affd., 8 Cow. 360.)

Not only do we believe that the entire amount of the monthly payments is exempt for the reasons stated, but such payments are exempt for the further reason that the agreement expressly provides that the beneficiary cannot assign or commute the payments herein provided.” The payments herein provided ” are the monthly payments sought to be reached under the execution. As they cannot be voluntarily assigned, they cannot be subject to levy by execution.

That conclusion is sustained by the reasoning in the following cases: Barry v. Equitable Life Assur. Soc. (59 N. Y. 587); Baron v. Brumner (100 N. Y. 372); Amberg v. Manhattan Life Ins. Co. (171 N. Y. 314).

Section 684 of the Civil Practice Act makes an exception to the general rule in cases where it applies, but, as heretofore stated, it is not applicable under the facts in this case.

The order of the Appellate Division and that of the Special Term should be reversed and the motion to vacate granted, with costs in all courts. The question certified should be answered in the negative.

Pound, Ch. J., Crane, Kellogg, O’Brien and Crouch, JJ., concur; Lehman, J., not sitting.

Ordered accordingly.


author: Per Curiam.

text:
    In the Matter of Howard L. Berry, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted December 15, 1933;
    decided January 9, 1934.)

      George A. Marcus for appellant.
    The petitioner was not guilty of laches. His delay in commencing suit was not unreasonable. (People ex rel. Tierney v. Scannell, 27 Misc. Rep. 662; People ex rel. McDonald v. Lantry, 48 App. Div. 131; Matter of Johnson v. Brearton, 261 N. Y. 683.) The Appellate Division improperly reversed on the law. (Matter of Oysterman’s Dock Co. v. Downing, 258 N. Y. 156.)

      Mathias P. Poersch, Corporation Counsel (.McDonald King of counsel), for respondents.
    The petitioner is defeated by his laches. (People ex rel. Miller v. Justices, 78 Hun, 334; People ex rel. Young v. Collis, 6 App. Div. 467; Matter of McDonald, 34 App. Div. 512; People ex rel. Collins v. Ahearn, 120 App. Div. 95; Matter of Roche v. Fiske, 131 Misc. Rep. 852; People ex rel. Tonawanda v. Fitzhenry, 170 App. Div. 227; Matter of Vanderhoof, 15 Misc. Rep. 434.)
   Per Curiam.

Relator, an honorably discharged soldier, was discharged in January, 1932, from his position in the service of the city of Schenectady by the Commissioner of Public Works without cause and without being given a hearing. He commenced this mandamus proceeding to procure his reinstatement in July, 1932, about six months after his discharge. Respondents set up the defense of laches. Relator offered excuses for the delay which justified the court in deciding that the delay under the circumstances did not constitute laches which required the dismissal of the proceeding.

The Special Term decided the proceeding upon the merits in favor of the relator-appellant. It is conceded that the decision upon the merits was justified. The Appellate Division on the appeal to that court reversed the order of the Special Term on the law and dismissed the proceeding on the ground that the petitioner was guilty of laches.

The decision of the Special Term that relator-appellant was not guilty of laches under the circumstances involved the exercise of a judicial discretion provided the record disclosed facts from which it could determine that petitioner had not delayed commencing the proceeding for an unreasonable time under the circumstances. (People ex rel. Gas-Light Co. v. Common Council, 78 N. Y. 56.)

The facts disclosed by the record fully justified the Special Term’s decision, and as the Appellate Division has not disapproved the facts upon which the decision of the Special Term is based, we must accept the findings of fact as evidenced by the decision of the Special Term.

No question of law was presented for the determination of the Appellate Division and it was error for it to reverse the order of the Special Term on the law and dismiss the proceeding. (McDougall v. Shoemaker, 236 N. Y. 127.)

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

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

Ordered accordingly.


author: Kellogg, J.

text:
    Elizabeth Mayo et al., Respondents, v. The New York Central Railroad Company, Appellant, Impleaded with Others. (Action No. 1.) Elizabeth Mayo et al., Respondents, v. The New York Central Railroad Company, Appellant. (Action No. 2.)

      (Argued October 11, 1933;
    decided January 9, 1934.)

      Kenneth 0. Mott-Smith, Frederick L. Wheeler, Clarence B. Plantz and Clive C. Handy for appellant.
    Plaintiffs have failed to prove that they are successors, in title, to Van Cortlandt. (Beers v. Hotchkiss, 256 N. Y. 41; Lamb v. Union Ry. Co., 195 N. Y. 260; O’Gara v. Eisenlohr, 38 N. Y. 296; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90.) Plaintiffs are estopped to deny appellant’s title to parcels Nos. 1, 2 and 3 in action. No. 2. (McNichol v. Flynn, 167 App. Div. 646; Jackson y. Wilson, 9 Johns. 91; Ludlow v. H. R. R. R. Co., 4 Hun, 239; Tobey v. Taunton, 119 Mass. 404; DeWitt v. Van Schoyk, 35 Hun, 103; 110 N. Y. 7; Trustees of Town of Brookhaven v. Smith, 118 N. Y. 634.)

      Talbot M. Malcolm and Henry W. Eaton for respondents.
    Plaintiffs are successors in title to Van Cortlandt. (Starke-Belknap v. N. Y. C. R. R. Co., 197 App. Div. 249; 234 N. Y. 630; People v. Starke-Belknap, 218 App. Div. 849; 247 N. Y. 457; Beers v. Hotchkiss, 256 N. Y. 41.) The lands involved were included in the Van Cortlandt grant. (Starke-Belknap v. N. Y. C. R. R. Co., 197 App. Div. 249; 234 N. Y. 630.) Plaintiffs are not estopped from claiming title to parcels Nos. 1, 2 and 3 in action No. 2. (People v. Starke-Belknap, 218 App. Div. 849.)
   Kellogg, J.

These two actions involve the title to lands under water on the easterly side of the Hudson river, at a point approximately one mile north of the village of Croton-on-Hudson. The plaintiffs claim title to the two parcels involved in the first action and the four parcels involved in the second, as the successors in interest of Stfephanus Van Cortlandt, to whom, in the year 1697, there -was patented by the Crown a large tract of land on the east side of the Hudson river, between the Croton river on the south and Anthony’s Nose on the north, extending through to the Connecticut line on the east. The appellant, New York Central, claims title to lot No. 2 in action No. 1, through a grant of land under water, made by the State of New York in the year 1915, to the defendants Sherwoods, which the Sherwoods subsequently deeded to the appellant. Parcel No. 1 in action No. 1 is not now involved, since the appellant never claimed title thereto, and the claimants, Sherwoods, have not appealed from the judgment decreeing that the plaintiffs own title. The appellant, New York Central, also claims title to the four lots in action No. 2, its claim being based upon a grant made to it in December, 1873, by the State of New York. Obviously, if the Crown, in the year 1697, conveyed to Stephanus Van Cortlandt the lands under water now in question, the State of New York possessed no title thereto which it could effectively convey to the appellant in the year 1873, or to the Sherwoods in 1915.

The Van Cortlandt patent, in describing the westerly boundary of the land granted, gives the point of beginning as Knightawanck creek (now Croton river), and then reads as follows: Riming along the said Hudsons River Northerly as the said River runs into the North side of a high Hill in the high Lands Commonly Called and Knowen by the Name of Anthonys Nose to a Red Ceadar Tree * * * Including in the Said Northerly Line all the Meadows, Marshes, Coves, Bays and Necks of Land and pennensulaes that are adjoining or Extending into Hudsons River within the bounds of the Said Line * * *.”

In Sage v. Mayor (154 N. Y. 61) the. court considered a grant of land, described as bounded on the east by the Harlem River.” The grant by its terms included all meadows, pastures and marshes ” which were “ within the said bounds and limits set forth.” The court held that the phrase last quoted so limited the phrase first quoted that no marshes below high-water mark were granted, saying: “ When lands are described in a deed as bounded by a navigable river where the tide ebbs and flows, the title ends at high water mark, as the law stood at the date of the Nichols charter and as it stands today.” The appellant seeks to apply this doctrine to the present case, asserting that as the Hudson river constituted the west boundary line of the lands patented, which meant the river at high-water mark, the “ coves and bays ” granted must be “ within the bounds of the said Line,” or above such high-water mark. Obviously, there could be no coves or bays along the westerly line of the grant, at higher levels than the maximum flow of the Hudson river. Self-evidently, if the words “ coves ” and “ bays ” contained in the grant, were to be given any effect, the strict doctrine of Sage v. Mayor could not be applied, and the words “ along the said Hudsons River ” could not be interpreted to mean along the high-water mark of that river as it winds and turns. And so it was held in Starke-Belknap v. N. Y. Central R. R. Co. (197 App. Div. 249; 234 N. Y. 630).

In the case cited the parcels involved were lands under water in front of uplands covered by the Van Cortlandt Patent, slightly to the north of the parcels here involved. It was stipulated between the parties that the lands were under the water of coves and bays, constituting indentations in the Hudson river. The court held that the lands were covered by the Van Cortlandt patent. Citing the words to which we have referred and others, it stated: These terms taken together aptly express a boundary along the necks or points of land so as to include bays and coves as part of this manor.” In so doing it applied the doctrine of the Long Island cases cited by it, viz., Robins v. Ackerly (91 N. Y. 98); Tiffany v. Town of Oyster Bay (209 N. Y. 1, 7); Grace v. Town of North Hempstead (166 App. Div. 844; affd., 220 N. Y. 628). That doctrine is expressed in Tiffany v. Town of Oyster Bay (supra) as follows: In the ancient colonial charters granting land on Long Island in which the sound is named as the boundary on the north, the term refers directly to the body of water known by such name and does not include waters opening into it or connected with it.” The implication arising from the Starke-Belknap case, if not its express holding, is that, for the purpose of interpreting the Van Cortlandt grant, the Hudson river, as employed to determine the western boundary, must be regarded as the main body of the river, excluding indentations made by coves and bays.

In Robins v. Ackerly (supra) the subject of the action was the title to lands under water in Northport bay, Long Island. Northport bay is almost entirely land locked, the headlands at its mouth being less than one-third of a mile apart, while the depth of the bay is more than three miles. It empties, not into Long Island sound, but into Huntington bay, itself several miles deep. In Tiffany v. Town of Oyster Bay (supra) the subject of the action was the title to lands under water in Cold Spring harbor. That harbor is more than five miles deep, while the headlands which afford entrance thereto are less than a mile and a half apart. In Grace v. Town of North Hempstead (supra) the subject-matter was the title to lands under the waters of Manhasset bay. That bay extends inland more than three miles, while the headlands at the opening thereto are less than one mile apart. In all these instances, the depth and width of the bay were many times greater than the width of the opening. Clearly, each constituted an indentation of the sea ” (Oxford Dict.); “ an indentation in the shore line of a body of water ” (New Standard Dict.); a large tract of water, around which the land forms a curve ” (Webster’s Internat. Dict.). Consequently, they were in the strictest sense of the word bays ” forming no part of Long Island sound. We have here an entirely different case. The distance between the headlands forming the opening to this so-called bay is nearly five times greater than the set-back of the river into the easterly shore. Here is no indentation ” of the shore line of the.river; no tract of water around which the land forms a curve.” Here is no harbor wherein boats at anchor might he secure, protected from the peril of wind and wave by the projecting headlands of a bay.” Instead, we have the arc of a circle, with a radius so great that the receding shore is washed by current and tide and wave without let or hindrance. Indeed, the argument that this curve in the river creates a bay which is no part of the Hudson river is subject to a reductio ad absurdum. A glance at the government map referred to will show that just north of the so-called bay under discussion, from Verplanck Point to Anthony’s Nose, the river sets back so deeply into the Van Cortlandt shore line, that a straight line drawn between those points would intersect lands projecting from the westerly shore of the river. The argument advanced would lead to the ridiculous conclusion that, at points along the Une, there is no Hudson river flowing by the Van Cortlandt grant. The question under consideration was not involved in the action of Starke-Belknap v. N. Y. Central R. R. Co. (supra), for, as already pointed out, it was expressly stipulated therein that the disputed lands were under the waters of coves ” or bays ” within the meaning of the grant.

The maps which have been placed in evidence clearly indicate that the four parcels involved in the second action he beneath the waters of small coves or bays, indenting the easterly shore of the Hudson river, within lines drawn from nearby headlands to nearby headlands. It must be held that these lands were included in the Van Cortlandt grant. The same is not entirely true of parcel No. 2, involved in action No. 1. The. court has found as a fact that these lands are shown on Defendant’s Exhibit Q. in blue shading cross hatched in black with the number 2 in a square.” An examination of that exhibit indicates that while a portion of such lands he within a small cove or bay, a line drawn from headland to headland would exclude other portions from the cove or bay, to the extent of approximately one-half of the parcel. However, these excluded portions would be comprehended by the grant, provided the bend of the river to the east, between Croton Point on the south and Verplanck Point on the north, may properly be termed a “ cove ” or “ bay ” within the meaning of the patent. The United States Coast and Geodetic Survey, an exhibit in the case, indicates that the distance between these two points is six and one-half miles; that the extreme bend of the river to the east between these points is one and one-half miles. May it be said that, within the meaning of the Long Island rule as applied to the Hudson river as it passes the Van Cortlandt grant, that river, properly regarded, between the two points six and one-half miles apart, does not touch the westerly shore of the Van Cortlandt property? That all the waters, lying easterly of a straight line drawn between the two points, constitute a “ bay ” or cove ” opening into the Hudson?

It is true that the plaintiff’s claim of title is not technically perfect. Title is traced from Stephanus Van Cortlandt in 1697 to Conklin and Bassely in the year 1736. Conveyances from Conklin and Bassely, and their successors, to Nehemiah Lounsberry in 1791 are missing. From Lounsberry to the plaintiffs title is sufficiently shown. This break in the title of some fifty-five years the plaintiffs have sought to cure by deeds of lands, other than those in question, the recitals of which indicate that during the interval the predecessors in title of Lounsberry were the owners of these lands or in possession thereof. In addition is the fact that Isaac Anderson, an upland owner, who conveyed to the New York Central Railroad Company its present right of way in the year 1847, was the predecessor in title of the plaintiffs in respect to all the uplands, through the ownership of which the plaintiffs claim title to the under-water lands. It does not lie in the mouth of the appellant to dispute the title of their common grantor. It is also true that the common grantor of both parties, John G. Morton, in making a grant to the New York Central in the year 1910, bounded the grant in part by the lands under water, now in dispute, conveyed by the State of New York to the railroad in the year 1873, and thereafter, in the same year, made the conveyance of his ungranted remaining lands to the plaintiffs by a deed under which the plaintiffs now claim title. We see in the prior conveyance no acknowledgment that the grant made by the State in the year 1873 to the New York Central carried a valid title, and find that the plaintiffs are not thereby estopped.

The judgment in the first action should be reversed and a new trial granted, with costs to the appellant to abide the event. The judgment in the second action should be affirmed, with costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ., concur.

Judgment accordingly.


author: Cbouch, J.

text:
    The People of the State of New York, Respondent, v. Harry Murch, Appellant.

      (Argued December 11, 1933;
    decided January 9, 1934.)

      Joseph, Lonardo, Dana Wallace, A. M. Brownstein and H. Irwin Brownstein for appellant.
    The court’s refusal to charge the manslaughter degrees of homicide deprived defendant of a substantial right, and presents reversible error. A defendant over twelve and under sixteen years of age, charged with murder, is entitled to the same trial and to the same charge by the court as an adult. (Matter of Knowack, 158 N. Y. 482; People y. Lewis, 260 N. Y. 171; People v. Fitzgerald, 244 N. Y. 307.) The court would not be divested of jurisdiction by a verdict of a crime over which it had no original jurisdiction, and would have had power to impose only the punishment prescribed for the lower crime. (State v. Shepard, 10 Iowa, 126; Boyd v. State, 4 Minn. 237; State v. De Laney, 28 La. Ann. 433; People v. Schoenith, 7 N. W. Rep. 70; Winburn v. State, 9 So. Rep. 694; Matter of Bell, 34 Pac. Rep. 641; Fleming v. State, 18 So. Rep. 263; Reynolds v. Comm., 27 S. E. Rep. 427; State v. Scott, 67 Atl. Rep. 534; State v. Lucas, 51 S. E. Rep. 1021; Howland v. State, 268 S. W. Rep. 115.)

      Charles S. Colden, District Attorney (Mordecai Konawitz of counsel), for respondent.
    The defendant could not be guilty of manslaughter and such a verdict would have been a nullity. (Penal Law, § 2186; People v. Fitzgerald 244 N. Y. 307; People v. Lewis, 260 N. Y. 171; People v. Roper, 259 N. Y. 170.) Proof that defendant committed acts which if committed by an adult would be manslaughter, cannot establish his guilt of the felony. The effect is the same as if the Legislature had expressly declared that no child under the age of sixteen years can be guilty of manslaughter. (People v. Roper, 259 N. Y. 170; People v. Schleiman, 197 N. Y. 383; People v. Van Norman, 231 N. Y. 454; People v. Seiler, 246 N. Y. 262; People v. Miller, 143 App. Div. 251.)
   Cbouch, J.

The defendant was indicted for the crime of murder in the first degree. His age, when the crime was committed, was fifteen years, ten months and six days. He was tried upon the theory that the killing was premeditated, deliberate and with felonious intent. He was convicted of the crime of murder in the second degree. The judgment of conviction was affirmed by the Appellate Division. The case is here upon a certificate by a judge of this court.

The material facts are undisputed. The defendant, his victim, Willie Bender, twelve years old, one Johnny Miller, ten years old, and his sister, Grace Miller, thirteen years old, were neighbors in Richmond Hill Circle, a partially developed section of Queens county. On January 31, 1933, after school was out, the defendant met Johnny Miller and told him “ he was going to get the Bender boy for letting all around that he had hit the lady over the head;” and that if Johnny did not go along with him, he would do the same thing to Johnny. Together they went to the garage at the defendant’s home, where defendant tore a piece of cloth from a rag, picked up some rope and put them in his pocket. They then set out to find the Bender boy and on the way defendant secured a knife — “ like a potato knife ”— which he had previously found at a dump and had hidden down by the bridge.” Having found the Bender boy, defendant said to him., I’ll show you how we are going to tie up the peanut man and stab him.” At defendant’s suggestion, they all went to an unfinished house in the neighborhood, climbed in and then up to a rear room on the second floor. Defendant said to Johnny Miller, “ first we will try it on you;” and he tied Johnny’s legs and hands with rope and then released him. Thereupon he said to the Bender boy, “ we will try it on you next.” The defendant tied the Bender boy’s hands and feet with the rope and covered his eyes and mouth with the strip of cloth. Then defendant said, “ I’ll put my finger where we are going to stab the peanut man.” He pulled up the Bender boy’s clothes, took out the knife and stabbed him through the heart, causing his death. The two boys then ran out and. went to the Miller house, dropping the knife on the way near a creek. The defendant told Grace Miller, who was then in the house, that he had stabbed Willie Bender with a knife. She went out, found the knife, threw it in the creek whence it was later recovered, and told the defendant to go home. No trace of the missing boy was discovered until February 15th, when the body was found by a carpenter who had entered the unfinished house for purposes of inspection.

In his charge to the jury the trial judge, having given apposite instructions concerning murder in the first degree by premeditation and murder in the second degree, then charged as follows: An infant under sixteen years of age can be indicted and tried for murder in the first degree or murder in the second degree and nothing else. Any other offense, committed by a defendant under sixteen years of age is juvenile delinquency which is not a crime.” In conclusion the jury was told that its verdict might be one of three: guilty of minder in the first degree, or in the second degree, or not guilty. To the instructions so given an exception was taken. To refusals upon requests to charge the lower degrees of homicide and to permit the jury to find thereunder, exceptions were also taken. These exceptions raise the only substantial question of law in the case.

The contention of the appellant is that under the provisions of section 610 of the Penal Law and of section 444 of the Code of Criminal Procedure, the trial judge was required to charge the lesser degrees of homicide. Those sections provide, in substance, that upon an indictment for a crime consisting of different degrees, the jury may convict of the degree charged or may acquit thereof and convict of a lesser degree, or of an attempt to commit the one or the other. But the power to convict of a lesser degree or of an attempt exists only where the evidence would justify such conviction.” (People v. Seiler, 246 N. Y. 262, 266.)

We will assume — though the evidence makes the assumption somewhat difficult — that if the defendant had been over the age of sixteen years or an adult, it would have been error not to charge the degrees of manslaughter. But since the defendant was under the age of sixteen, the duty of the judge to instruct the jury and the power of the jury to act under the two sections in question were both limited by other statutes. Section 2186 of the Penal Law provides that a child of more than seven and less than sixteen years of age, who shall commit any act or omission which, if committed by an adult, would be a crime not punishable by death or life imprisonment, shall not be deemed guilty of any crime, but of juvenile delinquency only.”

The definition of the word delinquent ” in section 486 of the Penal Law relating to delinquent children' includes “ any child over seven and under sixteen years of age * * * who commits any act which if committed by an adult would be a crime not punishable by death or fife imprisonment.”

The legislative history of those sections as well as the unmistakable implications of the language used, show a clear intent to remove from the category of crime any and all law-breaking acts committed by a child between the ages of seven and sixteen years, except those punishable by death or fife imprisonment. The conclusive presumption of incapacity which has always existed in the case of a child under seven years of age is, as to those acts, now applied to a child between the stated ages. The Penal Law decrees that the acts of .a child shall, in all cases other than acts constituting a felony punishable by death or fife imprisonment, be treated as if done without the ‘ evil mind ’ which characterizes felonious intent.” (People v. Roper, 259 N. Y. 170, 177.) That legislative intent has been implemented by the Children’s Court Acts (See, for the jurisdiction here involved, chapter 254 of the Laws of 1924) which give to those courts exclusive jurisdiction to hear and determine the cases of children under the age of sixteen years who are charged with juvenile delinquency. The result is that the only crimes which a child under sixteen years of age is capable of committing are treason, murder in the first degree and murder in the second degree; and that as to those crimes alone, in the case of such a child, have the criminal courts jurisdiction.

The trial judge, therefore, was well within the law when he charged as he did and when he refused to charge in the language requested. There was no jurisdiction in the County Court of Queens county to try this defendant for manslaughter in either degree, since he was legally incapable of committing manslaughter. A verdict of manslaughter or of juvenile delinquency would have been a nullity under the existing statutes.

It is urged that this construction of the statutes deprives a defendant under the age of sixteen years of a substantial right. What is referred to as a substantial right is merely the possible chance that the jury may convict of manslaughter instead of murder. While the rule embodied in section 610 of the Penal Law and section 444 of the Code of Criminal Procedure was intended merely to prevent the prosecution from failing where some element of the crime charged was not made out (Cf. People v. Miller, 143 App. Div. 251), it has resulted in conferring upon the jury a discretionary choice of verdicts which may or may not work mercy. (People v. Seiler, supra, pp. 268, 269.) In any event, a defendant’s chances in a case like this are enlarged rather than restricted, for the jury has the option of finding him not guilty upon facts which might lead to a conviction for manslaughter in the case of an adult or of one over the age of sixteen years.

The one point of this case upon which any doubt at all exists, is whether or not the jury, under the instructions given, understood clearly the scope of its choice of verdicts. Merely to tell the jury that any offense other than murder in the first degree or murder in the second degree committed by a defendant under sixteen years of age is juvenile delinquency, and that juvenile delinquency is not a crime, was to state the law somewhat baldly. Section 420 of the Code of Criminal Procedure contemplates information to the jury on all matters of law necessary in giving its verdict. It is conceivable that a jury in a case of this kind could perform its duty more intelligently if it were told what acts by an adult would constitute manslaughter; that like acts by the defendant would not be a crime but would be juvenile delinquency, and, if found on the evidence to have been committed by him, would lead to an acquittal; but that the defendant nevertheless could be dealt with as a juvenile delinquent, and in that case what the consequences would be and why. But the trial judge here was not requested to charge as to any of those matters. His omission to do so, if error at all, was error of fact and not of law.

Finding no error of law, the judgment should be affirmed. Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment affirmed.


author: Lehman, J.

text:
    City Bank Farmers Trust Company, as Trustee under the Will of G. Waldo Smith, Deceased, Appellant, v. G. Waldo Smith, Jr., et al., Respondents, Impleaded with Others.

      (Argued November 29,1933;
    decided January 9,1934.)

      Charles Angulo and Bernard Bernstein for appellant.
    The complaint shows that a situation has arisen entitling the trustee to the instructions of the court with respect to the trustee’s legal power to grant temporary relief to the tenant. (Matter of Waring, 99 N. Y. 114; Mayor v. Fitch, 9 App. Div. 452; Weir v. Barker, 104 App. Div. 112; Matter of City of New York, 81 App. Div. 27; Gomez v. Gomez, 147 N. Y. 195; Matter of McCaffrey, 50 Hun, 371.) The question concerning which the trustee is seeking the instructions of the court is a legal and not a business question. (Dyer v. Broadway Central Bank, 252 N. Y. 430; Snyder v. Bender, 173 N. Y. Supp. 401; Clark v. Levy, 130 App. Div. 389; Reppert v. Hunter, 180 App. Div. 680.)

      Jesse F. Orton and Thomas Campbell for respondents.
    The complaint was properly dismissed, as not stating a cause of action. The trustee has not the power which it claims to have, to make concessions to the tenant of the vital provisions of the lease prescribed by the court for the benefit of the trust estate. (Cons. Laws, ch. 50, §§ 106, 107.) The purpose and authority of sections 106 and 107 of the Real Property Law are not limited to the mere authorization of the execution of a lease. (Matter of City of New York, 81 App. Div. 27.)
   Lehman, J.

The complaint alleges that the plaintiff holds, as trustee, real property in the city of New York. It has leased this property for a term of approximately twenty years, expiring September 30th, 1947, at a net rental of twenty thousand dollars per annum. Since June 1st, 1932, the tenant has not paid the full rent, and asserts that it will be compelled to vacate the premises unless it can obtain a temporary reduction of rent for the current year so that the net rental payable will be twelve thousand dollars per annum instead of twenty thousand dollars per annum as fixed by the lease. The plaintiff has asked the life tenants whether they would consent to the temporary reduction proposed by the tenant, “ but while one of the said life beneficiaries favors the granting of this relief the other two oppose it.” The complaint further alleges that doubt has arisen as “ to the respective rights of the parties hereto, and the plaintiff is unable to proceed with the proper administration of its trust unless said doubt is resolved, said controversy determined, and the respective rights of the parties hereto declared and adjudged and the plaintiff instructed as to its legal duties and authority in the premises.” Upon motion made in accordance with rule 106 of the Rules of Civil Practice, the complaint has been dismissed.

The life beneficiaries are given no power.by the terms of the will creating the trust to interfere with the trustee in the administration of its trust and the law gives them no such power. The manner in which a trustee shall exercise his function rests ordinarily within his discretion.

If he exceeds his powers, acts negligently or abuses his discretion, a beneficiary injured thereby may have redress, but a beneficiary has no power to control the action of the trustee. Consent by a beneficiary in advance may bar claim for redress, on the theory of volenti non fit injuria, but consent cannot enlarge nor objection limit the powers of the trustee. Thus a controversy between trustee and beneficiary as to the wisdom of suggested action by the trustee where there is room for choice does not concern “ rights and other legal relations ” of the parties and forms no basis for a declaratory judgment. (Civ. Prac. Act, § 473.)

In accepting a trust, the trustee assumes the duty of administering the trust with reasonable care. That duty cannot be shifted, and though, at times, a trustee, when in doubt, may ask instructions of the court, the court will not, ordinarily, advise the trustee what course he shall pursue where there is room for the exercise of choice. Even though the courts may have power to control the action of a trustee by instructions or advice, such power may be invoked by the trustee only where, upon estabfished equitable principles, instructions or directions are required for his protection and the discharge of his trust. Trustees are not entitled to instructions with reference to questions relating to the administration of a trust where the trustees were authorized to exercise their discretion with reference thereto.” (Hill v. Moors, 224 Mass, 163, 165.)

It has been said that the purpose of this advisory jurisdiction assumed by courts of equity is not to provide a substitute for the usual legal advisers, but to protect trustees in the class of cases where the advice of competent lawyers is not sufficient protection, because of the doubtful meaning of the trust instrument or because of uncertainty as to the proper application of the law to the facts of the case. There must also be a real need that the trustee’s doubts be solved.” (2 Perry on Trusts and Trustees [7th ed.], § 476-a. Cf. Matter of Waring, 99 N. Y. 114; Warner v. Mettler, 260 Ill. 416.) Thus the question presented here is whether the complaint shows that there is substantial doubt as to whether the trustee has power to grant the tenant a temporary reduction, assuming that in the opinion of the trustee such reduction would be beneficial to the trust estate.

Even though the will creating the trust confers upon the trustee no express power to lease the trust estate, the trustee “ may execute and deliver a lease of such real property for a term not exceeding five years, without application to the court. The Supreme Court may, by order, on such terms and conditions as seem just and proper, in respect to rental and renewals, authorize such a trustee to lease such real property for a term exceeding five years, if it appears to the satisfaction of the court that it is for the best interest of the trust estate.” (Real Prop. Law, Cons. Laws, ch. 50, § 106.) The power to make a lease includes the power to modify its terms. The trustee has power to modify a lease made for a term of less than five years, just as the trustee has power to make such a lease. In this case the lease was made for a term exceeding five years. For such a lease the approval of the court was required and obtained. The purpose of the statute would be frustrated if the trustee, having obtained the approval of the court on “ such terms and conditions as seem just and proper, in respect to rentals,” could thereafter modify such terms without the approval of the court.

That a trustee has no power to enter into an agreement modifying, for a period exceeding five years, the terms of a lease approved by the court, is not questioned, but the plaintiff urges that it may maintain this action for instructions as to its power to modify such a lease temporarily. We find no possible basis for such a distinction. The stipulated payment of rental during the coming year is no less part of the lease for twenty years than the stipulation for payment of rental during the last year of the term. Instead of exercising its power to lease the property for a term not exceeding five years, the trustee asked and obtained the approval of the court for a longer period. Then the court determined that the terms and conditions as to rentals were just and proper. The obligation to pay a stipulated rent dining the entire period of the lease constituted part of the bargain submitted to the court for approval. If the trustee believes that a bargain less onerous to the lessee would be of advantage to lessor and lessee alike, he may ask the court to approve a modificar tion of the lease. To that extent such a modification looking to the future, whether for a short or long period, would constitute an abrogation of the old lease and the execution of a new lease, and the Real Property Law (§§ 106 and 107) provides a summary method of obtaining the approval of the court. Without such approval the trustee has no power to reheve the lessee in advance of any obligation of the lease already approved. The clear mandate of the Legislature that the terms and conditions of every lease for a period exceeding five years must be submitted to the court for its approval, leaves no room for doubt that a trustee is without power to modify terms approved by the court, without another application to the court for approval of the lease with its amended terms. There is no basis for asking instructions of the court upon a question of law where there is no room for doubt. The courts below, therefore, properly dismissed the complaint upon motion. Other disposition would merely further delay the trustee in arriving at a determination, which it alone can make, as to whether application should.be made to the court for approval of a lease on amended terms. The complaint does not even allege that the trustee, would, in the exercise of its discretion, modify the terms of the lease if it had power to do so. Under the most favorable construction of the complaint, the trustee is seeking either general instructions as to a trustee’s powers, though it may never choose to exercise such powers, or specific instructions as to the manner in which the trustee’s discretion should be exercised.

The situation might be different if the trustee asked instructions as to its power to waive a default in the performance of the lessee’s covenants in the lease. That question is not before us, and, if presented, would be governed by different considerations.

The judgment should be affirmed, with costs.

Pound, Ch. J., Cbane, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Judgment affirmed.