author: Desmond, J. Fuld, J.

text:
    The People of the State of New York, Respondent, v. Walter C. Hildebrandt, Appellant.
    Argued January 20, 1955;
    decided April 14, 1955.

      Delon F. Mousaw for appellant.
    I. Procedural rules applicable to misdemeanors apply to traffic violations. II. The prosecution failed to identify defendant-appellant as the operator of the automobile photographed and thereby failed to prove a prima facie case. III. The presumption that the owner of the automobile was the operator at the time of the alleged offense of speeding was improper. (People v. Rubin, 284 N. Y. 392; Hilton v. Bender, 69 N. Y. 75; People v. Cannon, 139 N. Y. 32; People v. Terra, 303 N. Y. 332; Tot v. United States, 319 U. S. 463; State v. Lloyd, 233 N. C. 227.) IV. Progress in the field of law enforcement still must be tempered with constitutional safeguards. (People v. Offermann, 204 Misc. 769.)

      Harry L. Rosenthal, District Attorney (John J. Conway, Jr., of counsel), for respondent.
    I. There was sufficient evidence to establish defendant-appellant’s responsibility for the unlawful speeding. (People v. Rubin, 284 N. Y. 392; People v. Dyle, 21 N. Y. 578; People ex rel. Woronoff v. Mallon, 222 N. Y. 456.) II. Progress in the field of public safety is aided by the rebut-table presumption which the trial court used. III. The use of the photographs offers positive physical evidence of the violation.

      W. Clyde O’Brien and Richard Turner for Sergeant & Green-leaf, Inc., and Traffic Controls, Inc., amici curiae, in support of respondent’s position.
    I. The courts of this State approve the use by criminal trial courts of the common-law rebuttable presumption that the registered owner of an automobile proven to have been operated in violation of a traffic regulation or ordinance was the person who was operating it at the time of such violation. (People v. Rubin, 284 N. Y. 392; City of Buffalo v. Thorpe, 132 Misc. 307; People v. Marchetti, 154 Misc. 147; Commonwealth v. Ober, 286 Mass. 25; Burke v. Cincinnati, 27 Ohio N. P. [N. S.] 589; People ex rel. Albrecht v. Harnett, 221 App. Div. 487; People v. Cohen, 128 Misc. 29; People v. Stryker, 124 Misc. 1; Griffen v. Manice, 166 N. Y. 188; People v. Jackson, 182 N. Y. 66; Knickerbocker v. People, 43 N. Y. 177; People v. Galbo, 218 N. Y. 283; People v. Berger, 260 App. Div. 687; People v. Rogan, 223 App. Div. 242.) II. The use of the phototraffic camera provides an accurate and feasible method of establishing all of the essential elements of a speeding violation other than direct proof of the identity of the operator of the vehicle. III. The use of the rebuttable presumption of operation of a vehicle by its owner is essential in traffic cases in which the proof of violation is established through use of the phototraffic camera.
   Desmond, J.

The question of law on this appeal is: may it be inferred, from the fact that a person is the owner of an automobile, that he is its driver at a particular time?

Defendant’s conviction, in a Court of Special Sessions, was for the “ traffic infraction ” (see Vehicle and Traffic Law, § 2, subd. 29) of driving an automobile at a speed illegal in a restricted speed zone (Vehicle and Traffic Law, § 56, subd. 4; § 95-c). The penalty imposed was a small fine. Police officers, to measure the speed, had used a ‘ ‘ phototraffic camera ’ ’ which takes two photos, at a set time interval apart, of a moving vehicle. The distance traveled, by the car, in that interval, from a fixed point, was the basis for a mathematical computation of the rate of speed. Defendant does not dispute the accuracy of that device and method. However, one of the results of its use, in this instance, was that the driver of the automobile was not identified by the policemen or arrested at the time, and defendant got no notice, till two weeks later, that he was charged with the offense. At the trial, there was no direct proof as to who was in fact operating the car, but simply a showing that the automobile was registered and licensed in the name of defendant as owner. We must, therefore, decide whether the Justice of the Peace, and the County Judge on the appeal, were right in holding that proof of ownership, by this defendant, was, without more, sufficient proof that it was he who was operating it at an illegal speed when the photographs were taken.

The prosecutor asserts (citing People v. Rubin, 284 N. Y. 392, hereafter discussed) that there is a “ rebuttable presumption ” in such cases that the owner is the operator. We do not agree. Speeding in an automobile is personal, individual wrongdoing, which can subject the wrongdoer to serious penalties (for the first offense a fine up to $100 and imprisonment for as long as a month [Vehicle and Traffic Law, § 70, subd. 4], and, if the conviction be the third in an eighteen-month period, mandatory revocation of the driving license [Vehicle and Traffic Law, § 71, subd. 2, par (c)]). Such “ traffic infractions ” are of the grade of offenses ”, not felonies or misdemeanors, but they are tried like misdemeanors (Vehicle and Traffic Law, § 2, subd. 29, supra) and to them, as to “ offenses ”, there should be applicable the criminal-law rules of presumption of innocence and necessity of proof of guilt beyond a reasonable doubt (see People v. Erickson, 283 N. Y. 210; People v. Strong, 294 N. Y. 930; People v. St. Germain, 302 N. Y. 580). We are reminded, too, that speeding itself is sometimes a misdemeanor (see Public Authorities Law, § 361, subd. 1), and that the presumption ” of identity here indulged in would, for consistency, have to be made available in prosecutions for misdemeanors, and even felonies, committed in the operation of automobiles (such felonies are described in Penal Law, § 1053-a, and Vehicle and Traffic Law, § 70, subd. 5; such misdemeanors are described in Vehicle and Traffic Law, § 17, subd. 5; §§ 58, 68, 70, subds. 1, 5, 5-a, 6, 7, 9, and Penal Law, § 244). At least as used in criminal law, a " presumption ” is a rule of law attaching definite probative value to a specific fact, as distinguished from an “ inference ”, which is a permissive conclusion by a trier of the fact, unaided by any rule or theory of law directly applicable. In a criminal prosecution, any fact presumed must, for due process, have a natural, not an unreasonable or an unnatural, connection with.facts proven (People v. Cannon, 139 N. Y. 32, 43; People v. Pieri, 269 N. Y. 315, 324; People v. Terra, 303 N. Y. 332, 335). Although presumptions, in criminal law, need not necessarily be statutory (People ex rel. Woronoff v. Mallon, 222 N. Y. 456, 464, 465), they often take that form (see People v. Terra, supra, p. 334). For the asserted “ presumption ” which is the sole support of this conviction, there is no statutory authority, which means, at least, that the New York Legislature has not disclosed its awareness of a need for such a statutory presumption. We express no advance opinion as to the validity of such a statute if one should be enacted. Other Legislatures have acted (Penn. Stat. Ann., tit. 75, § 739; Conn. Gen. Stat., 1953 Supp., § 1039c; see, as to Ontario statutes, Regina ex rel. Collins v. Greenfield, 1954, O. W. N., p. 292). Making rules for traffic control is peculiarly a legislative job, and our Legislature has actually provided for other presumptions relating to the use of automobiles in the Vehicle and Traffic Law (see, for instance, § 11, subd. 4).

Now, having ruled out any “ presumption ”, we must next decide whether the proof supports an inference by the fact trier that this defendant was driving the car. We think it is going much too far to infer the driver’s identity from the fact of ownership. We all know that many a passenger car is customarily driven at various times by various persons, we know that many a person owns more than one passenger automobile, we know that some owners are not licensed operators, and we are informed that there are outstanding in this State at least one million more automobile operators’ licenses than passenger automobile registrations. From all of that it follows, we think, that it is hardly a normal or ready inference or deduction that an automobile which speeds along a highway is being driven by its owner, and by no other person. Apparently, the question is a new one, but that is because speeders are usually pursued and arrested after pursuit, whereas this identity question arises because of the use of a photographic speed recorded, without pursuit or arrest. The device used may be efficient and scientifically trustworthy, its use may make pursuit and immediate arrest inconvenient or unnecessary, and highway safety may be promoted by eliminating such pursuits. But it takes more than necessity to validate a presumption in a criminal case (Tot v. United States, 319 U. S. 463, 467), and here we do not even have a presumption.

The People, not unreasonably, put their reliance on People v. Rubin (284 N. Y. 392, supra). Rubin was convicted of violating a New York City parking regulation. There was “ no direct proof that stationing of the car in violation of the ordinance was done by the defendant ’ ’ but this court held that his admission of ownership “ made out a prima facie case ”. However, we do not think this decision was meant to go so far as to make that a uniform rule for every prosecution involving an automobile. After all, parking violations are of a special sort. The car is left unattended, there is usually no one present to be arrested, and it is not unreasonable to charge to the owner an illegal storage of his vehicle in a public street. We, of course, do not repudiate the Rubin decision but we think its coverage should be limited to parking cases.

The judgments should be reversed, the information dismissed and the fine remitted.

Fuld, J.

(dissenting). In People v. Rubin (284 N. Y. 392), this court upheld the defendant’s conviction for illegal parking solely on proof that he was the owner of the automobile, and I perceive no reasonable or sound basis for not applying the principle of that case to the one before us. Proof of ownership of a vehicle, the court there decided, constitutes ‘ ‘ sufficient basis for an inference of personal conduct ”, even though no statute so provides and justifies the conclusion that it was the owner * * * [who] controlled the car and personally violated the regulation ” (284 N. Y., at pp. 396-397).

Whether we use the label presumption ” or inference,” it would seem indisputable that stare decisis compels affirmance. The similarities between the Rubin case and the present one are unusually striking. Just as in Rubin, so here, the trial judge relied upon the inference that the owner was the operator at the time in question, in order to bridge the gap between proof of offense and identity of offender. As here, the inference was not aided by any statute, but resulted solely from the court’s use of “ a common process of reasoning ” (284 N. Y., at p. 396); it was also in the field of ‘ ‘ traffic ’ ’ infractions, and the penalty was almost identical. There, too, the effect of the inference was to raise prima facie proof of guilt, which the defendant could have refuted by offering evidence of an alibi, through the testimony of others if he chose not to take the stand. And, finally, as in this case, the conviction likewise depended upon a finding that it was the defendant himself, not his car, that broke the law.

Without a dissenting voice, this court held that it was permissible to find — given the offense and the fact of ownership — that it was “ the owner * * * [who] controlled the car and personally violated the regulation ” (284 N. Y., at p. 397).

We should not now lightly disregard the Rubin decision, with all its parallels of fact and reason. Surely, we should not do so, merely because in the present case the car was moving and attended at the time of infraction, whereas Rubin’s was at a standstill and driverless. Nor may we disregard that earlier case, because there are in this state more licensed drivers than cars. It is, nevertheless, as likely that the owner "will be at the wheel of his car when it speeds as when it parks.

If, as the majority opinion declares, it is not unreasonable ” to charge the owner of a parked vehicle for “ an illegal storage * * * in a public street ” (opinion, p. 401), then, it necessarily follows, it is equally reasonable to charge the owner of a speeding vehicle for an illegal journey upon such street. In neither case is it proper to relate guilt to mere ownership of the offending vehicle, but in neither case is that done. Here, as there, guilt is predicated upon the inference, always rebuttable, that the owner was the operator.

Wholeheartedly agreeing with the court’s insistence upon consistency” (opinion, p. 400), I favor affirmance upon the clear and compelling authority of the Rubin decision. I am more impressed by the need for present fidelity to its settled rule and rationale than I am by a concern that some day a vehicular manslaughter case, or other serious case, may induce infidelity to today’s decision.

However, quite apart from the Rubin case, both principle and common sense support affirmance of this conviction. The fact that the legislature has not seen fit to enact the presumption into a statute is of no moment. Nonstatutory presumptions are as deeply imbedded in the fabric of our law as their statutory counterparts. Mention need but be made of the presumption of guilt of crime from proof of defendant’s possession of its fruits (People v. Galbo, 218 N. Y. 283, 290; Knickerbocker v. People, 43 N. Y. 177); of due delivery of a letter from proof of its mailing (News Syndicate Co. v. Gatti Paper Stock Corp., 256 N. Y. 211); and of legitimacy from proof of marriage (Matter of Findlay, 253 N. Y. 1), to recall a few in common use in trials. Indeed, the very presumption here in question has long been recognized and applied in civil cases. (See, e.g., Potts v. Pardee, 220 N. Y. 431, 433; People v. Rubin, supra, 284 N. Y. 392, 396.)

The nature and origin of such presumptions have been well explained by the court in People ex rel. Woronoff v. Mallon, 222 N. Y. 456, 464-465: ‘ Presumptions are constantly arising from the proof of facts which move juries or courts to a determination. Because these presumptions are not classified into statute law does not weaken their force in the particular case. Presumptive evidence and the presumptions or proofs to which it gives rise are not indebted for their probative force to any rules of positive law; but juries, in inferring one fact from others which have been established, do nothing more than apply, under the sanction of the law, a process of reasoning, the force of which rests on experience and observation, and such inferences are presumptions of facts. ’ (Justice v. Lang, 52 N. Y. 323, 329.) ”

Rules of presumption are, of course, nothing more or less than rules of evidence. (See, e.g., People v. Nelson, 234 App. Div. 481, affd. 260 N. Y. 559.) As such, they are subjects as appropriate for the court as for the legislature. Their validity depends, not upon which body or tribunal proclaims them, but upon how well they square with traditional guarantees of due process. As the United States Supreme Court declared in Tot v. United States (319 U. S. 463, 467), in invalidating a statutory presumption aimed at possession of weapons by ex-convicts, The rules of evidence, however, are established not alone by the courts but by the legislature. * * * The section under consideration is such legislation. But the due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.” It is, therefore, clear that legislative action in this field would not alter the question.

The test of the validity of a presumption has often been formulated. It requires that the fact proved, that is, the fact from which the inference proceeds, be rationally connected to the fact inferred. We have said, quite recently and in a serious criminal case, that a presumption is good or bad depending " upon whether, based on life and life’s experiences, a rational connection between the fact proved and the ultimate fact presumed may be said to exist.” (People v. Terra, 303 N. Y. 332, 335.)

The inference is, of course, rebuttable, and, to satisfy the demands of due process, it is not essential that the inferred fact follow as an inevitable conclusion from the proposition which has been proved. Here, for example, the circumstance that it is not always the owner of a speeding car who is at the wheel does not ipso facto invalidate the presumption. The basic test is whether common experience supports the probability, not the certainty, that, if the first fact is true, the second is also true. To the Supreme Court, speaking in the Tot case, we are indebted for this analysis of the use of presumptions in criminal cases (supra, 319 U. S., at pp. 466-467):

An indictment charges the defendant with action or failure to act contrary to the law’s command. It does not constitute proof of the commission of the offense. Proof of some sort on thé part of the prosecutor is requisite to a finding of guilt; it may consist of testimony of those who witnessed the defendant’s conduct. Although the Government may be unable to produce testimony of eye witnesses to the conduct on which guilt depends, this does not mean that it cannot produce proof sufficient to support a verdict. The jury is permitted to infer from one fact the existence of another essential to guilt, if reason and experience support the inference. In many circumstances courts hold that proof of the first fact furnishes a basis for inference of the existence of the second.”

I cannot say that the courts below were in error in holding that the defendant’s ownership of the car “ furnishes a basis for inference ”, supported by reason and experience ”, that he was driving. And, if that cannot be said, this court may not void the inference, merely because some assign to it a somewhat lesser degree of probability than others have selected.

Beyond that, in assessing the validity of a rule of presumption, we should not wholly lose sight of the practical ends of justice. Speeding on the highway — carrying with it, as it does, an ever-growing toll of death and injury — presents not only a serious police problem, but a grave social problem as well. Scientific devices are at hand to meliorate the menace, but they will be made useless if too heavy insistence is placed upon the need of chase and capture to sustain each conviction. It is impossible to blink the fact that there are simply not enough police officers to patrol the roads efficiently without the assistance of mechanical aids, such as the phototraffic camera here employed. It is a great pity that the advantages to be derived from its use are to be denied to this state by judicial action.

I do not mean to suggest that these practical considerations would be sufficient to justify an inference otherwise impermissible, or that a presumption would become just and proper merely because it will facilitate a conviction. The balance between the rights of the individual and the interests of society may at times be a delicate one, but here the court, in my view, is going far beyond the necessities of the case. The body of the offense, speeding, has been proved, and only the question of identity remains. It does not strike me as harsh, or as imposing any but the lightest burden, to require a defendant in a case such as this to offer evidence upon a fact peculiarly within *his own knowledge, particularly since it may be done through the testimony of others. (See, e.g., 8 Wigmore on Evidence [3d ed., 1940], § 2273, pp. 426-427, 431.)

What the court, through Judge Seabs, wrote in 1940 in People v. Rubin (supra, 284 N. Y. 392, 396-397) — and it constitutes an impeccable summary of the good sense of the rule for which I speak — might well have been written for the very case before us:

To rule that this inference may not be drawn from the established facts would be to deny to the trier of the facts the right to use a common process of reasoning. (Justice v. Lang, 52 N. Y. 323.) Ownership of a vehicle in civil cases has long been recognized as prima facie proof that it was being operated by or for the owner. [Oases cited.] Here, ownership has been held a sufficient basis for an inference of personal conduct. If he was not in control he could easily have produced a witness or witnesses to show it. [Cases cited.] We find it competent under the circumstances to conclude from the proof that the owner of the car controlled the car and personally violated the regulation. [Cases cited.] ”

The conviction should be affirmed.

Fboessel, Van Voobhis and Btjbke, JJ., concur with Desmond, J.; Fuld, J., dissents in an opinion in which Conway, Ch. J., and Dye, J., concur.

Judgments reversed, etc.

      . Round figure estimate from latest available official figures.

      . The regulation involved in the Bubin ease was in no sense an “in rem” provision, directed against the car itself, but was aimed at the individual who actually parked it; thus, the regulation provided, in so many words, that “No person shall park a vehicle ” for more than one hour in certain streets. (New York City Traffic Regulations, § 85a; see, also, People v. Rubin, supra, 284 N. Y. 392, 394.)


source: Caselaw Access Project

author: Yah Yookhis, J.

license: Public Domain

text:
    20 East 74th Street, Inc., Respondent, v. Esther Minskoff, as Executrix of Sam Minskoff, Deceased, et al., Appellants.
    Argued January 13, 1955;
    decided April 14, 1955.

      Stephen S. Bernstein, William Jay Lippman and Alvin J. Burnett for appellants.
    I. The proof was conclusive that the building had been completed in accordance with the contract, the terms of which were clear and unambiguous. (Hartigan v. Casualty Co. of Amer., 227 N. Y. 175; Brainard v. New York Central R. R. Co., 242 N. Y. 125; Raleigh Associates v. Henry, 302 N. Y. 467; Heller & Henretig v. 3620-168th St., 302 N. Y. 326; General Phoenix Corp. v. Cabot, 300 N. Y. 87; Friedman v. Handelman, 300 N. Y. 188; Brandt v. Morning Journal Assn., 81 App. Div. 183, 177 N. Y. 544; Bedcro Realty Corp. v. Title Guar. & Trust Co., 290 N. Y. 520; Elefante v. Pizitz, 182 App. Div. 819, 230 N. Y. 567; Larkin Co. v. Terminal Warehouse Co., 161 App. Div. 262, 221 N. Y. 707; Fogelson v. Rackfay Constr. Co., 300 N. Y. 334.) II. The alleged promises made after the closing were void both for lack of consideration and under section 33-c of the Personal Property Law. (Green v. Doniger, 300 N. Y. 238; Delancey Kosher Restaurant & Caterers Corp. v. Gluckstern, 305 N. Y. 250; Gearns v. Commercial Cable Co., 293 N. Y. 105; Matter of River Brand Rice Mills v. Latrobe Brewing Co., 305 N. Y. 36; Cream of Wheat Co. v. Crist Co., 222 N. Y. 487; O’Meara Co. v. National Park Bank, 239 N. Y. 386.) III. The delivery of the general releases constitutes a bar to this suit. (Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182; Knapp Engraving Co. v. Post Constr. Corp., 280 App. Div. 763.)

      Aaron Upper and Walter J. Keeley for respondent.
    I. The contract provisions relating to completion of the building do not bar respondent from showing the failure of appellants to complete and furnish the building. (Raleigh Associates v. Henry, 302 N. Y. 467; Lachs v. Fidelity & Cas. Co. of N. Y., 306 N. Y. 357; O’Neil Supply Co. v. Petroleum Heat & Power Co., 280 N. Y. 50; Kirke La Shelle Co. v. Armstrong Co., 263 N. Y. 79; Gilligan v. Tishman Realty & Constr. Co., 283 App. Div. 157, 306 N. Y. 974.) II. The agreements alleged- in paragraph “ Seventh ” of the complaint do not violate section 33-c of the Personal Property Law. The agreements reaffirm what appellants were originally supposed to do, namely, provide a complete and well-finished building in accordance with the plan of organization. The written agreement was not changed, modified or discharged. III. The delivery of the general releases does not constitute a bar to this suit. (Rosenfeld v. Fairchild Engine & Airplane Corp., 201 Misc. 616; Hettich v. Hettich, 304 N. Y. 8.)
   Yah Yookhis, J.

This action is brought by the corporate owner of a co-operative apartment house against its former stockholders (the promoters and developers of the co-operative) to recover damages for failure to complete the building according to contract. Any recovery in the action will inure to the benefit of the individual purchasers of co-operative apartments, who constitute holders of 95% of the corporation’s stock. The remaining 5% is still owned by defendants or some of them. The contract under which the action is brought is the one under which the co-operative was formed and by which the rights and liabilities regarding the project were established between plaintiff, defendants and the apartment owners. The plan was formulated and 95% of the shares in plaintiff were sold to purchasers of apartments while the building was under construction. Inasmuch as the building had not been finished, the contract contained a clause (par. 8) whereby defendants agreed (upon conditions) to cause the apartment corporation to proceed with the completion and equipment of the building. The co-operative plan was not to take effect until completion of the building, and, in event that it were not completed, then the million dollars, which was the approximate amount subscribed in the aggregate by the ninety-four purchasers under the plan who are now plaintiff’s stockholders, was to be returned to them by defendants’ agent (Brown, Wheelock, Harris, Stevens, Inc.) to whom they paid it in escrow when they signed the agreement. This agreement provided that its provisions should bind, apply to and inure to the benefit of plaintiff corporation, holding title to the co-operative, to the extent that its provisions were applicable. Plaintiff’s complaint alleges that the building has not been completed according to contract. Defendants deny this, and allege that it has been completed within the obligation of the contract. The appeal is from an order of the Appellate Division, First Department, which denied defendants’ motion for summary judgment dismissing the complaint, holding that there is a triable issue.

Ordinarily, there would be a triable issue where there are conflicting affidavits under which it might he contended that a building has or has not been completed. There would he a triable issue here except for the circumstance mentioned in the second question certified by the Appellate Division, viz.: ‘ ‘ May defendants be held liable for failure to complete the building despite the occurrence of the three events specified in paragraph ‘ 9 ’ of the Sellers’ Agreement, which provides that upon such occurrence the building shall be deemed completed? ”

Except for the circumstance mentioned in this certified question by the Appellate Division, the question at issue would center upon whether this building had been completed in accordance with the ‘ ‘ plans and the general description ’ ’, as they are called in the agreement. The parties were not obliged, however, to include in their contract an obligation by defendants to complete the building in that manner; it did contain a covenant upon that subject, but one which was qualified by a clause in the eighth paragraph permitting deviations from the plans and general description of the building without further notice to the Purchasers ” if such deviations were approved by the supervising-architect for the building loan lender and the permanent mortgagee ; the covenant to complete the building was also qualified by the ninth paragraph, which states that the building is to be deemed completed, for the purposes of the contract, as soon as the final certificate of occupancy has been issued by the department of housing and buildings of the City of New York, the final payment on the building loan mortgage made, and the mortgage assigned to the Mutual Benefit Life Insurance Company for permanent financing. The ninth paragraph states that “ When the three events above mentioned have occurred, the same shall be deemed and considered by all parties hereto as conclusive proof that the building has been fully completed in accordance with the provisions of this agreement ”.

There is no suggestion that any of these events occurred through collusion, or in consequence of any kind of fraud or mistake. On the contrary, these events depend upon the performance of acts by third parties dealing at arm’s length, and (except for the department of housing and buildings) having an interest adverse to defendants and almost identical with that of the apartment owners. This clause in the agreement appears to have been prompted by a desire to avoid a multiplicity of controversies with the purchasers of apartments concerning whether the building had been, in fact, completed. In order to furnish an objective test, the contracting parties selected three events whose occurrence would involve a high degree of probability that the building had been finished according to the plans and general description.

The first of these events signifying completion was the issuance of a certificate of occupancy, which under the Administrative Code of the City of New York can be granted by the department of housing and buildings only upon an affidavit ‘ ‘ of a licensed architect, licensed professional engineer or superintendent of construction who supervised the construction ’ ’ which ‘ ‘ shall state that the deponent has examined the approved plans of the structure for which a certificate of occupancy is sought, and that to the best of his knowledge and belief the structure has been erected in accordance with the approved plans, and as erected complies with the laws governing building construction, except in so far as variations therefrom have been legally authorized. Such variations shall be specified in the affidavit.” (§ C26-187.0.) These facts have to be verified by the department of housing and buildings. A certificate of occupancy, when issued, must certify “ that such a structure conforms substantially to the approved plans and specifications and the requirements of the laws governing building construction applicable to structures of the class and kind of such structure.” (§ C26-181.0.) The certificate of occupancy for this building, which was issued in 1947, contains this statement required by the Administrative Code.

The final payment on the building loan would not be made until the architect or engineer for the lending institution was satisfied that the building had been completed, and the permanent mortgagee, the Mutual Benefit Life Insurance Company, to which the permanent first mortgage was to be assigned, could normally be relied upon to insist that it obtain a completed apartment building as collateral to its loan.

The purchasers of co-operative apartments were informed by defendants’ written prospectus that “ For all the purposes of the plan, the apartment building shall be deemed completed as soon as all of the following three conditions are met ”, after which these three events described in the ninth paragraph of the contract are specifically enumerated.

Paragraph ninth in the contract even stated that The conclusiveness of the presumption that the building has been fully completed * * * shall not be affected by the fact that as a condition of receiving the final payment on the building and permanent first mortgage loan the Apartment Corporation or the Sellers, with or without security or guarantees, may have agreed with the mortgagee to do or perform additional work after the receipt of such final payment; in the event, however, of such agreement, the Sellers, jointly and severally, agree to perform or cause to be performed the terms and conditions of the agreement so made with the mortgagee in respect to any such additional work.” Some additional work was required to be performed by the Mutual Benefit Life Insurance Company before it accepted an assignment of the building loan mortgage, but the work thus required was done to its satisfaction as shown by a letter written to plaintiff’s president: We have inspected the property and find that the building is now fully completed. ’ ’ In the absence of fraud or mistake, of which there is no evidence, this co-operative apartment house is conclusively presumed to have been completed by agreement of the parties upon the happening of these events. (Wyckoff v. Meyers, 44 N. Y. 143.)

It is conceded in respondent’s brief that the occurrence of these three events made operative the plan for the transfer of the capital stock to the co-operative tenant owners and the payment of the purchase price by the escrow agent to defendants. Nothing contained in the contract limits the effect of the definition of completion of the building to the purpose of making operative the co-operative plan. It applies equally to the obligation to complete the building for the use of the tenant owners. The contract contains no language which would reserve to the apartment owners, or to plaintiff for their benefit, any cause of action based! on neglect to complete the building; after the plan had become operative, which was to occur only upon the happening of the contingency that the building had been completed. It would be contrary to the words and to the structure of the agreement to construe it as meaning that it is conclusively presumed that the building has been completed for one purpose but not for the other. The Appellate Division does not appear to have denied defendants’ motion for summary judgment upon that theory. It held that the- presumption of completion is not confined to putting the co-operative plan into operation, but that it also' has the effect of barring insubstantial claims for damages’ arising' from failure to complete the building. This presumption was held also to preclude claims for damages arising from failure to complete the building based on matters about which reasonable men might differ ”. The only difficulty with such an interpretation, as we view it, is that the Appellate Division did not go quite far enough. The contract draws no distinction between the conclusiveness of the presumption of completion in giving effect to the co-operative plan and in barring claims for damages. It provides that, when the three events above mentioned have occurred, it shall be deemed by all parties to be “ conclusive proof that the building has been fully com pleted in accordance with the provisions of this agreement ”. At another place the contract states that “ For the purpose? of this agreement, the apartment building shall be deemed com pleted as soon as all three of the following conditions are met ” The presumption of completion was intended by the parties t« be conclusive for all of the purposes of the agreement.

One further point made by respondent remains to be considered, which is that a triable issue is presented by a separate oral agreement alleged in the seventh paragraph of the complaint to have been made by defendants subsequent to the closing of ” the co-operative plan and the acquisition of their stock by the co-operative apartment owners. This agreement is asserted to declare that defendants ‘ ‘ would do everything necessary to fully and properly complete the building and furnish the necessary equipment in accordance with the intentions of the defendants and Sam Minskoff and their agreement to provide a complete and well furnished building, in accordance with the plan of organization.” The chairman of plaintiff’s hoard of directors called this alleged oral agreement “ The heart of the plaintiff’s complaint ” in an affidavit submitted in opposition to defendants’ motion for summary judgment Special Term correctly ruled out this contention, stating that Such oral promises were without consideration and are not actionable in the absence of a memorandum sufficient to satisfy subdivision 1 of section 33-c of the Personal Property Law.” Paragraph 24 of the contract contains the clause contemplated by this section of the Personal Property Law, that “ no change or modification of the terms and conditions of this agreement shall be binding upon the Sellers unless the same shall be in writing, signed by Sam Minskoff on behalf of the Sellers.” The purpose of inserting this provision in accordance with the statute is clear. If it «era possible to eliminate the objective test of completion contained in the contract by proving an oral promise to finish what the contract stated must conclusively be presumed to have been finished, there would have been little purpose in incorporating such a test in the contract. Likewise, no consideration has been shown for a new promise to perform work upon the building. Only certain agreements made in writing are validated without consideration by section 33 of the Personal Property Law. This agreement is alleged to have been made orally. Consideration is necessary to support promises of this nature (Schlegel Mfg. Co. v. Cooper’s Glue Factory, 231 N. Y. 459). The Appellate Division does not appear to have questioned the disposition made of this point by Special Term.

No decision is rendered concerning whether the general releases would be effectual in the absence of the other factors in the case.

The order of the Appellate Division should be reversed and the judgment of Special Term reinstated, with costs in this court and in the Appellate Division. The first question certified is answered in the affirmative, and the second question certified answered in the negative.

Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Burke, JJ., concur.

Ordered accordingly.

       Paragraph 8 and the relevant portions of paragraph 9 of the contract read as follows:

        “ 8. The Sellers undertake and agree that they will cause the Apartment Corporation to proceed with the completion and equipment of the building substantially in accordance with the plans as prepared by Sylvan Bien and approved by the Department of Housing and Buildings and with the general description set forth in Schedule A annexed to the plan provided, however, that from time to time changes in the plans and the general description of the building as set forth in Schedule A annexed to the plan including substitution of materials and equipment, deemed necessary by the Sellers and approved or accepted by Clarence C. Merritt, supervising architect for the Central Hanover Bank and Trust Co. and The Mutual Benefit Life Insurance Company, or his successor, may be made by the Sellers without further notice to the Purchasers.
      “ 9. For the purposes of this agreement, the apartment building shall be deemed completed as soon as all three of the following conditions are met: (1) the final certificate of occupancy has been issued by the Department of Housing and Buildings of the City of New York; (2) the final payment on the building and permanent first mortgage loan has been made; and (3) said first mortgage payable substantially as described in the plan, has been assigned to The Mutual Benefit Life Insurance Company and/or is held by that company as a permanent mortgage. Expressions in this agreement such as ‘time of completion ’ or ‘ date of completion ’ shall be deemed to mean the earliest date when all three of the foregoing conditions have been met.
      “ When the, three events’ above mentioned have occurred,, the same- shall be deemed and considered by all parties hereto as conclusive proof that the building has been fully completed in accordance with the provisions of this agreement and when written proof of the occurrence of said three events has been submitted to the Agent, the Agent is expressly authorized and directed to pay to the- Sellers all monies received by it hereunder. The- eonclusiveness of the presumption that the building has been fully completed in accordance with the provisions of this agreement shall not be affected by the fact that as a condition of receiving the final payment on the building and permanent first mortgage loan the Apartment Corporation or the Sellers, with or without security or guarantees, may have" agreed with the' mortgagee to do or perform additional work after the receipt of such final" payment; in the event, however, of such agreement, the Sellers, jointly and severally, agree to perform or cause to- be- performed’ the terms and conditions of the agreement so made with the mortgagee in respect to any such additional work.”


author: Fuld, J.

text:
    In the Matter of Richard L. Wolf, Respondent, against Assessors of the Town of Hanover, County of Chautauqua, New York, Appellants. (Two Proceedings.)
    Submitted February 25, 1955;
    decided April 21, 1955.

      Robert P. Galloway and Glenn W. Woodin for appellants.
    I. The proceedings should be remitted to Special Term for compliance with the provisions of section 293 of the Tax Law. (Matter of Bapps Corp. v. Board of Assessors of City of Buffalo, 279 App. Div. 263, 304 N. Y. 766; Matter of Stevens v. Near, 202 Misc. 324; People ex rel. Lawrence Investing Co. v. Bowers, 267 App. Div. 839.) II. The total assessments of $4,000 for the years 1950 and 1951 are not excessive. III. In overvaluation cases, the only pertinent assessment is that of the subject parcel. (People ex rel. Yaras v. Kinnaw, 303 N. Y. 224.) IV. Petitioner has not established any inequality. (People ex rel. Warren v. Carter, 109 N. Y. 576.)

      Richard L. Wolf, respondent in person.
    I. The proceedings need not be remitted to the Special Term of the Supreme Court. (Matter of National Sur. Co. [Cheney Co.], 176 Misc. 53.) II. The assessments in question are excessive, illegal and unequal.
   Fuld, J.

In these proceedings, brought pursuant to article 13 of the Tax Law, to review assessments on real property in the Town of Hanover for the years 1950 and 1951,' petitioner claims that such assessments — which amounted to $4,000 ($660 for the land and $3,340 for the improvements) — were erroneous because of overvaluation and inequality. The property in question consists of a private house and lot, in a community comprised chiefly of summer homes, on the shore of Lake Erie.

Upon the written stipulation of the parties, the court at Special Term referred the issues to an official referee, former Supreme Court Justice Alonzo Gr. Hinkley, “ to hear and determine.” After a full trial of the issues before him, he confirmed the land component of the assessments and reduced the building component from $3,340 to $2,840, resulting in a reduction of the total assessment from $4,000 to $3,500. On the town’s appeal from that determination of the referee, the Appellate Division, two justices dissenting, affirmed. The issue which divided the court was whether a tax proceeding to review assessments may be referred to an Official Eeferee by any statute or rule or practice of the court ‘ to hear and determine.’ ”

That question — the power and authority of the court to refer the matter to an official referee to hear and determine ” — was raised for the first time on appeal. It was, and is, the town’s position that section 293 of the Tax Law compels a determination of the issues by the court itself and that, if a referee is appointed to take evidence, the reference must be one “ to hear and report,” and not one “ to hear and determine.”

Section 293 of the Tax Law provides that if, upon the hearing to consider whether the assessment is illegal, erroneous or unequal, it appears that testimony is necessary for the proper disposition of the matter, the court may take evidence or “ appoint a referee to take such evidence as it may direct, and report the same to the court, with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. ” (Emphasis supplied.) In words, therefore, the power to direct a reference under article 13 is restricted to one “ to take * * * evidence * * * and report ”. It is urged by petitioner, how ever, that section 117 of the Judiciary Law furnishes tin essential authority for a reference by an official referee to hear and determine. That section recites that, “As to all motion? actions or proceedings submitted to an official referee by stipulation of the parties appearing therein, or order of the court, except matrimonial actions, the same shall be deemed duly referred to said official referee and, in addition to all the powers now conferred by section four hundred sixty-nine of the civil practice act, he shall proceed therein with the same power and authority as a justice presiding at a regular special term of the supreme court ”. (Emphasis supplied.)

It may well be, as argued, that section 117 does not expand the class of litigation — so as to include tax review proceedings under article 13 — which may be referred to an official referee to hear and determine, or authorize the court on its own motion to order such a reference. (Cf. Salvino v. Ruzzo, 282 App. Div. 1093; Newcomb v. Newcomb, 281 App. Div. 689; but cf. Matter of Brock, 245 App. Div. 5.) But we need not now concern ourselves with that problem, since it is clear that the present reference was properly directed upon the stipulation of the parties. In a court which has jurisdiction over the subject matter of the litigation, the parties may agree, within broad limits, as to the mode of trial. Statutory procedures and, indeed, even the constitutionally protected right to a jury trial may be waived by the parties’ acquiescence in the procedure adopted. (See Matter of Powley v. Dorland Bldg. Co., 281 N. Y. 423; Matter of Malloy, 278 N. Y. 429; Baird v. Mayor of City of New York, 74 N. Y. 382.) The appointment of a referee to hoar and determine, made by a court fully vested with jurisdiction, relates only to the form of trial (see, e.g., Steamship Co. v. Tugman, 106 U. S. 118, 123) and, if upon consent, is unassailable.

In the case before us, the parties in writing agreed that the Supreme Court, which, of course, had full power to hear and determine the subject controversy, should refer the issues to an official referee of the court. Both parties put in their evidence and the town’s motion to dismiss at the close of the trial was in the most general terms, and, indeed, no objection was raised to the trial procedure until the appeal reached the Appellate Division. It was too late a stage in the proceeding to claim that the reference was not authorized. As this court wrote in the Powley case (supra, 281 N. Y. 423, 428-429), where a referee was likewise appointed without demur and evidence was introduced without objection that the referee lacked authority to try the issue, The respondent cannot put in his evidence and take his chance that he will win and, upon his failure, claim that the reference was illegal. It was within the power of the parties to confer jurisdiction on the court to determine the issues. The reference had the same effect as a reference in a judgment creditor’s action against a third party under section 795 of the Civil Practice Act would have had. The parties conferred jurisdiction on the court by the failure to raise the objection now made. (Baird v. Mayor, 74 N. Y. 382.) ” As noted, any objection that Special Term’s power to refer was limited in this case to a reference to hear and report was waived, not, merely by a failure to voice objection, but actually by the formal written consent engrossed on the order of reference itself. There can be no doubt that the parties became bound by the judgment entered. (See Matter of Powley v. Dorland Bldg. Co., supra, 281 N. Y. 423, 428.)

The town urges two other grounds for reversal — that petitioner has not established any inequality and that the assessments were not excessive — and to them we turn.

Since the Appellate Division affirmed the findings of the referee, we may consider only whether the findings of value were based on an erroneous principle of valuation. The referee having held that a reductioii must be decreed because the assessment was “ out of proportion and excessive,” an affirmance is compelled if there is evidence which supports either finding, inequality or overvaluation. Careful appraisal of the record persuades us that there is no such proof.

On the issue of inequality, petitioner adduced testimony directed, in the main, to establish that the assessments of similar, neighboring parcels were lower than the assessment of petitioner’s property. Such evidence, however, is irrelevant to the issue; a comparison of the assessment of the subject property with the assessments of other properties, unaccompanied by evidence of their full value, cannot furnish basis for a finding of inequality. In an inequality case, the task is to make a quite different comparison, a comparison between the rate of assessment of the subject property — i.e., the proportion of its assessed value to its full value — and the rates of assessment of a fair sampling of properties throughout the tax district. (Tax Law, § 293; see People ex rel. Yaras v. Kinnaw, 303 N. Y. 224; People ex rel. Hagy v. Lewis, 280 N. Y. 184; People ex rel. Warren v. Carter, 109 N. Y. 576.)

The reason why a mere comparison of the assessment of a neighbor’s property is irrelevant, and why the question is solely one of comparative rate of assessment, is evident when the purpose of an inequality proceeding is borne in mind. This court long ago held that the injustice to be redressed in such a proceeding is discriminatory assessing which has the effect of compelling the taxpayer to pay more than his due share of the aggregate tax, that is, the levy on all the taxpayers in the entire district. (See People ex rel. Delaware & Hudson Canal Co. v. Ganley, 131 N. Y. 566; People ex rel. Warren v. Carter, supra, 109 N. Y. 576.) But that grievance may not be established simply by showing an underassessment of neighbor A’s property. As Judge Andrews, writing for the court in the Warren case, put it, “ If a particular piece of property [e.g., neighbor A’s] on an assessment-roll is under-valued, another [e.g., neighbor B’s] may be correspondingly over-valued ” (109 N. Y., at pp. 580-581). In such circumstances, the subject property would be bearing no greater than its due proportionate share of the total tax burden, and, as indicated, the petitioner would have no cause or basis for complaint.

Nor would a property owner havé a redressable grievance if five neighbors had been unduly favored by assessments at, say, only 50% of full value, while all of the numerous other parcels in the tax district were assessed at full value. A revision of the assessment of the subject property, to make it more fairly proportionate to the assessments of the five neighboring parcels, might, on first reaction, seem to achieve a substantially just result. Actually, though, such a revision would introduce greater disproportion into an assessment-roll, because, to reduce petitioner’s assessment to 50% of full value would simply increase, from five to six, the owners who were being unduly favored at the expense of all other owners in the tax district. The only remedy in the hypothetical case just supposed would be to have the assessors increase the assessments of the favored five from 50% to full value.

More precisely, petitioner, to become entitled to relief, must show that the inequality of which he complains would subject him to the payment of more than his just proportion of the aggregate tax. That is the rationale underlying our decision in People ex rel. Warren v. Carter (supra, 109 N. Y. 576), and that is the reason why proof of inequality may be established only by showing that the assessment has been made, to quote the applicable provision of statute, “at a higher proportionate valuation than the assessment of other property on the same roll by the same officers ” (Tax Law, § 290-c).

Although, theoretically, this could be shown only by establishing that the subject property is assessed at a greater proportion of its full value than are all the other properties in the tax district, the efforts of the legislature have been directed to shortening the trials in inequality cases, and, accordingly, a procedure for making a selection of test parcels has been prescribed. (See, e.g., People ex rel. Yaras v. Kinnaw, supra, 303 N. Y. 224, 231.) Section 293 of the Tax Law was specifically designed to provide that the parties may agree on a selection of parcels to be valued ’ ’, or, if they fail to agree, that the court or referee make the selection. This procedural provision of the Tax Law clearly contemplates the valuation of each of the sample parcels. Since it is the comparison of the rates of assessment that has to he made, it follows that it is the rate of the assessment of the subject parcel and of the selected sample parcels that must be ascertained. The sample parcels should be selected, not for their similarity to the subject parcel, but rather as a fair cross-section of the situation that exists throughout a tax district.” (People ex rel. Hagy v. Lewis, supra, 280 N. Y. 184, 188.) Indeed, the fair selection of sample parcels, their evaluation, the consequent computation of their rates of assessment, and the comparison of their average rate of assessment with that of the subject property constitute the sum and substance of an inequality trial. The Hagy case, with care and precision, points the procedure to be followed, and we avoid needless repetition by referring to it, rather than by setting it forth again.

In the case before us, the values of neither the subject property nor the compared properties were ascertained, and there was no evidence of, or even inquiry into, the rates of assessment of the various properties. Such proof is basic, and the failure to supply it left a fatal void in petitioner’s case. (See People ex rel. Greenwood v. Feitner, 77 App. Div. 428, 431-432.) There is just no evidence to support the finding of inequality, nothing to show that petitioner will pay more than his due share of the aggregate tax.

Nor may the determination below be upheld, or petitioner assisted, by viewing the reduction of the assessment as one based on a finding of excessiveness or overvaluation. Entirely lacking is any testimony by any witness that the property was worth less than its assessed value of $4,000. The two expert witnesses called by the town placed its value at $9,000 and $8,500, and petitioner himself at the trial refused to place a value on it, observing, I do not intend to sell it; I wouldn’t take $10,000.” Nor may any weight be given, on the overvaluation issue — any more than on the inequality issue — to the testimony which was concerned with a comparison of the assessments of the subject and neighboring properties. Since the issue in an overvaluation case is whether the property is assessed at more than the full value thereof ” (Tax Law, § 8), an assessment may not be found excessive merely because some other similar property is assessed at a lower figure, if it does not appear that the subject property was assessed beyond its actual value. “ Where there is no over-valuation of his own property,” the court ruled in People ex rel. Warren v. Carter (supra, 109 N. Y. 576, 581), “ it does not follow that the taxpayer will be injured by an under-valuation of some piece of property belonging to another.” It is for this reason, as we recently held in the Yaras case (supra, 303 N. Y. 224, 229), that, In overvaluation cases, the only pertinent assessment is that of the subject parcel ”.

Of course, it hardly requires statement, evidence of inequality or overvaluation, given in accordance with the procedures which we have outlined, may establish that petitioner is, indeed, aggrieved by the assessments under review. As a matter of law, however, we must hold that the findings of value are without legal support.

The appeal has, in terms, been taken from the judgment entered on the order of the Appellate Division, rather than from the order itself. It is the order which is the appealable paper (Civ. Prac. Act, § 591, subd. 2; Tax Law, §§ 291, 293, 295; see Matter of New York Conference Assn. of Seventh-Day Adventists v. Schenck, 304 N. Y. 706; cf. People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610), but, since the appeal is, in any event, timely taken, we disregard the reference to the judgment as mere misdescription. (See Rosenberg v. General Realty Service, 259 N. Y. 123.)

The order of the Appellate Division should be reversed and the matter remitted to Special Term for further proceedings in accordance with this opinion, with costs to abide the event.

Conway, Ch. J., Desmond, Dye, Proessel, Van Voorhis and Burke, JJ., concur.

Order reversed, etc.


author: Burke, J. Fuld, J. Desmond, J.

text:
    The People of the State of New York, Appellant, v. Anniello Ercole, Also Known as “ T ”, Respondent.
    Argued February 25, 1955;
    decided April 21, 1955.

      Edward S. Silver, District Attorney (Aaron Nussbaum, Aaron E. Kooia and Jerome G. Ditore of counsel), for appellant.
    I. The amendment affected no substantial right of defendant. (People v. Karp, 298 N. Y. 213; People v. Ramistella, 306 N. Y. 379; People v. Vanderborg, 277 App. Div. 795, 301 N. Y. 750.) II. The amendment was authorized by section 295-j of the Code of Criminal Procedure. (People v. Rugg, 98 N. Y. 537; People v. Noblett, 244 N. Y. 355; People ex rel. Prince v. Brophy, 273 N. Y. 90; People ex rel. Pincus v. Adams, 274 N. Y. 447; People v. Katz, 209 N. Y. 311; People v. Dumar, 106 N. Y. 502; People ex rel. Hirschberg v. Supreme Court, 269 N. Y. 392.) III. The amendment was a proper exercise of judicial discretion under the statute. (People v. Miles, 289 N. Y. 360; People ex rel. Wachowicz v. Martin, 293 N. Y. 361.) IV. Section 295-j of the Code of Criminal Procedure is applicable alike to simplified, as to common-law indictments. (People v. Rakiec, 289 N. Y. 306; People ex rel. Prince v. Brophy, 273 N. Y. 90; People v. Miles, 289 N. Y. 360; People v. Florence, 146 Misc. 152, 146 Misc. 735; People v. Dumar, 106 N. Y. 502; People v. Miller, 169 N. Y. 339; People v. Bogdanoff, 254 N. Y. 16; People ex rel. Poulos v. McDonnell, 302 N. Y. 89; People v. Karp, 298 N. Y. 213; People v. Ramistella, 306 N. Y. 379; People v. Barsh, 281 App. Div. 1042; People v. Hooter, 282 App. Div. 398.) V. The amendment was “ according to the proof ” pursuant to the requirement of section 295-j of the Code of Criminal Procedure. (People v. Levine, 297 N. Y. 144; People v. McLaughlin, 291 N. Y. 480; People v. Adler, 140 N. Y. 331; People v. Lewis, 132 App. Div. 256; People v. Johnson, 104 N. Y. 213; People v. Herman, 45 Hun 175; People v. Scanlon, 132 App. Div. 528.) VI. Although the amendment at bar was made pursuant to section 295-j, it was allowable also under section 293 of the Code of Criminal Procedure. (People v. Bromwich, 200 N. Y. 385; People v. Geyer, 196 N. Y. 364; People v. Poucher, 30 Hun 576, 99 N. Y. 610; People v. Grout, 91 Misc. 451.) VII. As to mere formal defects, it should be noted that the right to amend was exercised even at common law. (People v. Johnson, 4 N. Y. Crim. Rep. 591, 104 N. Y. 213; People v. Geyer, 196 N. Y. 364; People v. Bromwich, 200 N. Y. 385; People v. Miles, 289 N. Y. 360; People v. Goyette, 282 App. Div. 980.) VIII. Section 1290-a of the Penal Law and section 295-j of the Code of Criminal Procedure are in pari materia. The amendment was in aid of the legislative purpose behind these statutes. (Smith v. People, 47 N. Y. 330; People ex rel. Jackson v. Potter, 47 N. Y. 375; People v. Peckens, 153 N. Y. 576; People v. Rugg, 98 N. Y. 537; People ex rel. Wood v. Lacombe, 99 N. Y. 43.) IX. Defendant waived the defect of pleading in the original indictment by failure to demand a bill of particulars. (People v. Giordano, 114 Misc. 62; People v. Willett, 213 N. Y. 368; People v. Ramistella, 306 N. Y. 379; People v. Vanderborg, 277 App. Div. 795, 301 N. Y. 750; People v. Bogdanoff, 254 N. Y. 16; People v. Rosen, 251 App. Div. 584, 275 N. Y. 627; People v. Florence, 146 Misc. 152, 146 Misc. 735; People ex rel. Todak v. Hunt, 153 Misc. 783; People v. Rubin, 170 Misc. 969; People v. Wright, 172 Misc. 860.) X. Defendant waived objection by his failure to move for a dismissal on the prosecutor’s opening statement. (People ex rel. Prince v. Brophy, 273 N. Y. 90; People v. Wiechers, 179 N. Y. 459.) XI. Should the decision of the Appellate Division be upheld by this court, the constitutional protection against double jeopardy will probably bar a second trial. (People ex rel. Stabile v. Warden of City Prison, 202 N. Y. 138; People ex rel. Meyer v. Warden of Nassau Co. Jail, 269 N. Y. 426; People ex rel. Blue v. Kearney, 292 N. Y. 679; People v. Goldfarb, 152 App. Div. 870, 213 N. Y. 664.)

      Edward H. Levine, Abraham Brodsky and Vernon C. Rossner for respondent.
    I. The amendment of the indictment under the circumstances not only nullified the legislative restriction contained in section 1290-a of the Penal Law, but also deprived respondent of his rights under the State and Federal Constitutions. (Matter of McDonald v. Sobel, 272 App. Div. 455, 297 N. Y. 679; People v. Bogdanoff, 254 N. Y. 16; People v. Hooter, 282 App. Div. 398; People ex rel. Prince v. Brophy, 273 N. Y. 90; People ex rel. Poulos v. McDonnell, 302 N. Y. 89; People v. Lobel, 298 N. Y. 243; People v. Karp, 298 N. Y. 213; People v. Williams, 243 N. Y. 162; People v. Farson, 244 N. Y. 413; People ex rel. Battista v. Christian, 249 N. Y. 314; People v. Miles, 289 N. Y. 360; People ex rel. Wachowicz v. Martin, 293 N. Y. 361.) II. The power to amend under section 295-j explicitly provides that amendment is allowed only “ according to the proof ”. (People v. Goyette, 282 App. Div. 980; People v. Hooter, 282 App. Div. 398; People v. Lobel, 298 N. Y. 243.) III. The Legislature, by specifically providing how larceny indictments wure to be pleaded and proved, gave a clear mandate that no earlier general provision for amending indictments was intended to nullify the later specific enactment prompted by public policy. (People v. Karp, 298 N. Y. 213; People v. Lobel, 298 N. Y. 243; People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; People ex rel. Barnes v. Warden of Workhouse, 127 Misc. 224; People v. Vanderborg, 277 App. Div. 795, 301 N. Y. 750; People v. Ramistella, 306 N. Y. 379; Zink v. People, 77 N. Y. 114; People v. Dumar, 106 N. Y. 502; People v. Brown, 191 App. Div. 708; People v. Cohen, 148 App. Div. 205; People v. Noblett, 244 N. Y. 355; People v. Miller, 169 N. Y. 339.) IV. Appellant was convicted for a crime of larceny by fraud (count “ Fifth ”), which was not found by a Grand Jury, contrary to section 6 of article I of the New York Constitution and the Fifth Amendment of the Federal Constitution. (People v. Trank, 88 App. Div. 294; People v. Motello, 157 App. Div. 510; Ex Parte Bain, 121 U. S. 1; People v. Hooter, 282 App. Div. 398; People ex rel. Battista v. Christian, 249 N. Y. 314; People v. Miles, 289 N. Y. 360; People ex rel. Wachowicz v. Martin, 293 N. Y. 361.)
   Burke, J.

This appeal involves a determination as to whether section 295-j of the Code of Criminal Procedure may be invoked to amend all indictments or is restricted in its application to indictments drawn and presented to the Grand Jury in accordance with the provisions of sections 295-b, 295-c, 295-d and 295-e of the Code of Criminal Procedure which are part of chapter III-A of title V of part IV of that code entitled Simplified Indictments ”.

In this case the original indictment as presented to the Grand Jury was prepared in accordance with section 276 of the Code of Criminal Procedure. The indictment contained four counts, the first charging grand larceny in the first degree, the second, third and fourth counts alleging petit larceny.

The first count accused the defendant of grand larceny in the first degree in that ‘ between the 11th day of October, 1950, to on or about the 22nd day of June, 1951, in the County of Kings, [he] stole and took from the possession of A. Pellegrino & Son, Inc., currency of the United States of America in the amount of approximately $2,195.50, with the intent to deprive the owner of said property, and the use and benefit thereof, and to appropriate the same to the use of the said defendant.” The three petit larceny counts are similar in form to the grand larceny count, differing only as to the amount and date of the larceny. However, the dates upon which the petit larceny was committed are embraced within the period of October, 1950, to June, 1951, averred in the first count of grand larceny.

During the examination of the first witness for the People, the defendant objected to further interrogation upon the ground that the indictment failed to allege that the defendant made use of a false or fraudulent representation or pretense in the course of accomplishing, or in aid of, or in facilitating the theft, as required by section 1290-a of the Penal Law. This objection was sustained, whereupon the People moved the court, pursuant to section 295-j of the Code of Criminal Procedure, to amend the indictment by adding thereto a fifth count of grand larceny in the first degree and a sixth, seventh and eighth count, each of petit larceny.

The amendment was granted over the objection of the defendant. All of the added counts were identical with the corresponding counts of the original indictment, but added allegations that the commission of the respective larcenies was aided through use of false representation and pretenses. The original four counts of the indictment remained.

Thus, prior to the close of the People’s case, the indictment contained the primary four counts of larceny plus the added four counts. At that juncture, the first, second, third and fourth counts were dismissed upon the election of the District Attorney to proceed only on counts five, six, seven and eight. Prior to summations, the court dismissed the sixth, seventh and eighth counts with the consent of both parties, submitting to the jury only the fifth count upon which the defendant was convicted.

The Appellate Division, while affirming the facts, reversed the conviction on the law alone and dismissed the indictment. The reversal was on the ground that an amendment to an indictment under section 295-j of the code can be granted only after the formal introduction of proof, and that section 295-j of the code does not permit an amendment to conform to evidence which has not been introduced and which, according to the express prohibition of a statute, could not have been introduced upon the indictment as found by the Grand Jury.

The defendant in addition asserts that the amendment here was improperly granted since section 295-j of the code authorizes amendments only of simplified indictments. We are in agreement with this latter contention.

Subdivision 1 of section 1290-a of the Penal Law states that if “ the defendant made use of any false or fraudulent representation or pretense in the course of accomplishing, or in aid of, or in facilitating the theft, evidence thereof may not be received at the trial unless the indictment or information alleges such representation or pretense ”. The indictment here failed to allege a false or fraudulent representation or pretense in connection with the larceny. Section 1290-a of the Penal Law, in addition to laying down a rule as to the introduction of evidence, likewise provided for the manner in which larceny achieved by false representation must be pleaded.

It is clear from section 295-a of the code that the Legislature intended that the long-form or statutory indictment continue to be used notwithstanding the innovation of simplified indictments. We must bear in mind that an indictment is an instrument required by the Constitution, not by the Legislature, stating the crime and the nature of the act constituting it. (N. Y. Const., art. I, § 6). The Legislature has been ever conscious of the constitutional requirements, for prior to the enactment of the Code of Criminal Procedure in 1881, there was no provision for the amendment of an indictment and indictments were subject to dismissal on extremely technical grounds. With the adoption of the code came the abandonment of the common-law formalism and technicalities which had plagued those charged with the drawing of indictments and which had rendered necessary the dismissal of many an indictment. At the same time, provision was made for the amendment of the new statutory form of indictment — colloquially known as a ‘ ‘ long-form indictment ” — to a certain limited degree. Thus section 293 of the code provides as follows: ‘ ‘ Upon the trial of an indictment, when a variance between the allegation therein and the proof, in respect to time, or in the name or description of any place, person or thing, shall appear, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended. according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable.”

Insofar as the long-form or statutory indictment is concerned, an amendment is permitted but only to the extent that there is a variance as to (1) time, (2) name or (3) description of any place, person or thing, and then only subject to the condition that the defense will not be prejudiced on the merits.

In 1929, the Legislature further liberalized the requirements of indictments by authorizing prosecutions under simplified indictments ” as prescribed in sections 295-a to 295-k of the code. As part of this particular enactment and apparently with reference solely to simplified indictments, the Legislature adopted section 295-j dealing with the amendment of indictments. The text of section 295-j is as follows: “ § 295-j. When amendment allowed. Upon the trial of an indictment, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable, by adding thereto new counts, where it is made to appear that the crimes to be charged therein relate to the transaction upon which the defendant stands indicted. The court may likewise, upon the same terms and under similar circumstances, direct the bill of particulars to be amended according to the proof, when a variance between the bill of particulars and the proof shall appear.”

It would seem abundantly clear that section 295-j is applicable only to the amendment of a simplified indictment inasmuch as it was enacted as part of an over-all legislative scheme to authorize prosecution by simplified indictments. There is a complete lack of authority indicating that the Legislature intended that section 295-j should apply other than to an indictment under sections 295-b, 295-c, 295-d and 295-e.

In examining chapter 176 of the Laws of 1929 one finds the following language: ‘ ‘ Title five of part four of the code of

criminal procedure is hereby amended by inserting therein a new chapter, to be chapter three-a, to read as follows:

CHAPTER III-A
Simplified Indictments ”

Then follows the enumeration of sections 295-a through 295-k. It is a principle of statutory construction that the headings of the various chapters or sections of an act, when inserted by the Legislature, are considered as part of their respective chapters and sections and are construed accordingly. (McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 130.) As stated in People v. Molyneux (40 N. Y. 113, 119): Those headings are not titles of the acts, but are parts of the statute, limiting and defining their effect.” (See, also, People v. Realmato, 294 N. Y. 45, 49.)

Even though our Code of Criminal Procedure authorizes the correction of mistakes or errors in respect to pleadings when no substantial rights are infringed (Code Crim. Pro., § 684), nevertheless we must assume that the Legislature has adopted and prescribed a logical pattern to do so in keeping with the provision of the Constitution. We have a clearly expressed intention of the Legislature to approve the continued use of the long-form or statutory indictment as authorized in sections 273 to 292-a of the Code of Criminal Procedure. Moreover, chapter III of title Y of part IY of the code, the heading of which is ‘ ‘ Amendment of the Indictment ’ ’, contains section 293 which enumerates the only situations under which the amendment of the long-form or statutory indictment is permissible. If we are to give section 295-j of the code the meaning which the trial court would have us do, section 293 of the code will be completely superseded by section 295-j. Language more definite is necessary before such a drastic change should be ascribed to the Legislature. • (3 Sutherland on Statutory Construction [3d ed., 1943], § 6201.) Indeed in those eases where the application of companion sections to section 295-j of the code has been considered in the lower courts, it has consistently been held that sections 295-g and 295-h of chapter III-A are applicable only to Simplified Indictments ” and do not change the existing rule as to long-form or statutory indictments (People v. Parkinson, 43 N. Y. S. 2d 690; People v. Keohane, 201 Misc. 597; People v. Seeley, 75 N. Y. S. 2d 833). If the Legislature intended that section 295-j should apply to long-form indictments drawn pursuant to section 276 of the code, the only logical course would have been to add that section to chapter III of title V of part IV of the code entitled ‘‘ Amendment of the Indictment ’ ’ rather than to insert it as one of the sections under chapter III-A of title V of part IV entitled Simplified Indictments ”. It is significant that sections 295-a to 295-k refer merely to ‘ * the indictment ” or an indictment ” whereas section 295-1, which was added to the code by chapter 506 of the Laws of 1935, reads: “ In all cases where a defendant has been indicted by a grand jury ”, obviously making a distinction between the applicability of section 295-1 and the preceding sections. Any other construction would defeat the plain intent of the Legislature. The Legislature, aware of constitutional limitations, has provided two procedures for pleading in criminal cases, the first procedure initially established in 1881 being set forth in sections 273 to 292-a of the code, and the second procedure established in 1929 being set forth in sections 295-b to 295-k of the code. An indictment drawn and presented to the Grand Jury under sections 273 to 292-a may be amended only pursuant to section 293 of chapter TIT of title V of part IV of the code. Indictments drawn and presented to the Grand Jury under sections 295-b to 295-k may be amended only pursuant to section 295-j of the code. The language of section 295-1 added in 1935 clearly illustrates the substantial distinction between the two procedures as it alone of all the sections under chapter III-A expressly and explicitly refers to all cases where a defendant has been indicted. That the Legislature refrained from using this all-inclusive language in the other sections of chapter III-A is a clear indication of its intent to limit the use of those sections as supplements to simplified indictments.

We believe a fair reading of sections 295-b, 295-c, 295-d, 295-e, 295-f, 295-g, 295-h, and 295-i of the code compels a conclusion that they are interrelated, and should be construed together. (2 Sutherland on Statutory Construction [3d ed., 1943], §§ 4703, 4704, 5205). Sections 295-j and 295-k are not only not distinguishable in their terms from the prior sections, but are definitely part of the legislative scheme employed in drafting chapter III-A.

The contention that each section under chapter III-A prior to the addition of section 295-1 should be construed as independent and unrelated to the other sections has already been rejected. This court has declared that a simplified indictment in form provided by section 295-d should be read together with the bill of particulars required by section 295-g in order to determine the sufficiency of the simplified indictment. This is so because the simplified indictment contains only a description of the crime whereas an indictment sufficient under the Constitution must also contain a statement of the facts by which it is constituted. (People v. Bogdanoff, 254 N. Y. 16, 23, 24, 25.)

In the absence of any showing of legislative intent to the contrary, we do not believe that there was statutory authority for granting the amendment under section 295-j of the code. The defendant took timely and appropriate objection and thereby preserved his rights on this appeal. The issue presented on this appeal was not raised and certainly not presented for decision in the cases of People ex rel. Prince v. Brophy (273 N. Y. 90), People v. Miles (289 N. Y. 360) or People ex rel. Poulos v. McDonnell (302 N. Y. 89). Consequently they may not be relied upon as authority for the precise point here considered.

In view of our disposition of the appeal on the grounds set forth above, it is unnecessary for us to discuss the grounds of reversal relied upon by the Appellate Division.

The order of the Appellate Division should be affirmed.

Fuld, J.

(concurring). In entire accord with Judge Desmond’s construction of section 1290-a of the Penal Law, I would agree for reversal and reinstatement of the judgment of conviction, if section 295-j of the Code of Criminal Procedure were applicable to indictments other than those designated simplified ” (Code Crim. Pro., § 295-b). However, for the reasons fully and ably stated by Judge Burke, I am persuaded that section 295-j does not, and was never designed to, apply to the sort of indictment before us. As to the intimations or statements to the contrary in the cases referred to in the dissent, it is sufficient to say that all of them could have been decided without reference to the point at issue; the other judges who subscribed to the opinions in those cases were not' bound, and, certainly, their successors should not be, by statements, no matter how oft reiterated, not essential to decision. As we declared in Dougherty v. Equitable Life Assur. Soc. (266 N. Y. 71, 88) — and recently repeated in People v. Olah (300 N. Y. 96, 101) —“ No opinion is an authority beyond the point actually decided, and no judge can write freely if every sentence is to be taken as a rule of law separate from its association.” (See, also, Cardozo, The Nature of the Judicial Process, pp. 29-30.)

Desmond, J.

(dissenting). When this indictment came on for trial, it contained one count alleging grand larceny, first degree, and three counts of petit larceny. On the trial, the indictment was, over defendant’s objection, amended by adding four more counts, each new count corresponding to one of the original ones, except that each new count contained an added allegation (not found in any of the first four) that the larceny was effected by defendant’s false pretense and representation that he was actually employed by the corporation from which he is said to have stolen money by taking it in the guise of wages. During the trial, seven counts were dismissed, leaving for the jury’s action one of the added ones, the fifth, which really included all the others in that it described the alleged theft, in the manner above stated, of $2,195.50, between October 11,1950, and June 22, 1951, being the whole amount and the whole period of time involved in the alleged wrongful takings. The jury convicted defendant on that fifth count. (Since there was prima facie proof of guilt, it is unnecessary to detail the evidence.) The Appellate Division, while affirming the facts, reversed the conviction on the law alone and dismissed the indictment. Its sole stated ground therefor was that the amendment of the indictment was illegal because it was made prior to the introduction of evidence of false pretenses, and so was not, held the Appellate Division, an amendment to conform the indictment to the proof.

In this court, defendant-respondent goes farther than did the Appellate Division. His position is that the addition to the indictment, of new counts, on one of which he was convicted, deprived him of his constitutional right (N. Y. Const., art. I, § 6) to be tried on an indictment found by a Grand Jury, in the traditional way, only. Our conclusion is that in this particular situation the amendment was valid, particularly since there was not and could not have been any prejudice therefrom, to any right of defendant.

The prosecutor, in his opening speech, told the jury that the People intended to prove that defendant had, by various devices, arranged to have himself carried on the payroll of a stevedoring company, and that he had collected from the latter over $2,000 in wages from October, 1950, to June, 1951, by pretending to be employed by the company and by pretending to be entitled to wages therefor. The indictment, as it then stood, with four original counts, did not contain any reference to false pretenses (see Penal Law, § 1290-a, subd. 1). After some preliminary testimony, the prosecution attempted to prove the alleged false representations. Defendant objected on the basis of subdivision 1 of section 1290-a of the Penal Law (supra) which, as enacted in 1942, says that if the theft was effected by means of any false or fraudulent representation or pretense, evidence thereof may not be received at the trial unless the indictment or information alleges such means ”. The objection was sustained. Thereupon, over the objection of defendant, the indictment was amended, as stated above, to add four new counts, each of which was identical with one of the original counts, except that each new count alleged false representations. The prosecutor, to meet any possible claim of prejudice (none was asserted) from the amendment, offered (and the court indicated its concurrence) to adjourn the trial, to proceed to trial before a different jury, to furnish a bill of particulars of the new counts, to permit an inspection of the grand jury minutes, or to accede to any other reasonable terms or conditions requested by defendant. Defendant, however, simply stood on his objection to the amendment as illegal. The court allowed the amendment, the trial proceeded, all the counts except the fifth (one of the new ones) were dismissed, and defendant was convicted. It is important, as we shall see a little later herein, to note that the amendment was moved and allowed “ pursuant to Section 295-j of the Code of Criminal Procedure ”, and that none of defendant’s objections to the amendment were on the ground that section 295-j was inapplicable to this particular indictment.

We take up, first, defendant’s assertion that the amendment here allowed was not authorized by section 295-j of the Code of Criminal Procedure or by any other statute. Section 295-j reads thus:

“ § 295-j. When amendment allowed. Upon the trial of an indictment, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable, by adding thereto new counts, where it is made to appear that the crimes to be charged therein relate to the transaction upon which the defendant stands indicted.

The court may likewise, upon the same terms and under similar circumstances, direct the bill of particulars to be amended according to the proof, when a variance between the bill of particulars and the proof shall appear.”

This amendment was made “ upon the trial ”, there was no possible prejudice to defendant, and the court offered to condition the amendment on reasonable, indeed generous, terms. Furthermore, it was obvious that the crimes charged in the added counts related ” to the transactions ” alleged in the first four counts. Each of those first four counts charged that defendant at a certain time stole and took from the possession of A. Pellegrino & Son, Inc., currency ” in a certain amount, etc. The new counts, as to those identical takings, merely complied with the pleading requirements of section 1290-a of the Penal Law (supra) requiring false pretenses to be set forth. We cannot avoid the conclusion that defendant’s conviction was for the very larceny for which he was indicted by the Grand Jury, and that the amendments merely corrected an error in pleading. Our Code of Criminal Procedure, like every other rational system, authorizes the rectifying of such mistakes when no substantial rights are infringed: § 684. Errors, etc., when not material. Neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a substantial right.” (See, also, §§ 285, 293, 542.)

Next, it is argued by defendant that section 295-j (supra), pursuant to which this amendment was permitted, is inapplicable since, says defendant, that section is part of chapter III-A of title V of part IV, headed Simplified Indictments ” and applies to such indictments only, and not to an indictment like the one found by the Grand Jury against this defendant. We will not stop to decide just what is a “ simplified indictment ”. The term is not readily definable, and section 295-b, which is part of chapter III-A of title V of part IV (supra), does not actually set up a new ldnd of indictment, but rather makes new minimum content requirements for valid indictments. Larceny indictments, like the one we deal with here, have, under section 1290-a of the Penal Law (supra), their own pleading requirements, one of which is, as we have shown above, that proof of false pretenses cannot be given at the trial unless false pretenses are alleged in the indictment. So, the phrase “ simplified indictment ” has little, if any, relation to larceny charges. But we see no reason why section 295-j does not apply to all indictments, not merely to those drawn in the “ simplified ” form described in section 295-b. Section 295-j, in terms, applies to “an indictment ’ ’, not to an indictment of some particular kind. Its beneficent purpose could not logically be restricted as to “ simplified ’ ’ indictments only. A subcommission of the “ Baumes Commission ”, recommending, in 1929, the enactment of section 295-j, stated its purpose of setting up a method of amending to cure drafting errors, and, while the subcommittee’s report is not specific in this respect, it seems not to limit to “ simplified ” indictments the amending power granted in proposed section 295-j (see N. Y. Legis. Doc., 1929, No. 99, pp. 103-104). The fact that section 295-j was enacted as part of a chapter headed “ Simplified Indictments ” does not constrain us to hold that its applicability is to such indictments only, since there appears in that same chapter at least one section (295-1 as to a bill of particulars of a defendant’s alibi) which could not possibly be confined to simplified indictments, and three others (§§ 295-f, 295-g, 295-h) which cannot reasonably be so confined. Another cogent reason why the use of section 295-j cannot be restricted to ‘ simplified ’ ’ indictments appears in our own opinions. Three times during a period of fourteen years (see People ex rel. Prince v. Brophy, 273 N. Y. 90 [1937]; People v. Miles, 289 N. Y. 360 [1942]; People ex rel. Poulos v. McDonnell, 302 N. Y. 89 [1951]), we said of a particular “long form” indictment that it could, under section 295-j, be amended (or could have been amended) by adding a count related to the same transactian. Defendant, of course, says that all those expressions in those three cases are “ dicta ” but they are definite statements by this court as to the applicability of a statute. For all these reasons, we conclude and hold that section 295-j can be used, in otherwise appropriate situations, as to any kind of indictment.

To defendant’s next two points — that this amendment violated his substantial rights and that it added new and unrelated charges — a single answer will suffice. That answer is that the newly added counts did not introduce any new crimes but amplified the already existing allegations as to the same crimes of larceny. Sections 1290 and 1290-a of the Penal Law furnish the key. Enacted in 1942, their plain intent and purpose was to abolish “ the subtle and confusing distinctions that had previously differentiated the various kinds of theft ” (see “ statement of policy ” in L. 1942, ch. 732, § 1; Fuld, The New Larceny Law, N. Y. L. J., May 19,1942, p. 2124; People v. Karp, 298 N. Y. 213, 216). Under new section 1290 there was thereafter to be but one crime, i.e., larceny, however the theft was accomplished. Section 1290-a was merely an associated ‘ ‘ pleading ” statute and contained, probably for historical reasons (see Hoffman, False Pretenses, Brooklyn L. Rev., Yol. XXI, No. 1, p. 65; People v. Dumar, 106 N. Y. 502), the requirement that false pretenses used in effecting the theft could not be proven unless pleaded in the indictment. So, since 1942, we have had one crime only: larceny, but a particular pleading and evidence rule applicable when that crime has been committed in a particular manner. Thus, in the indictment we have under scrutiny, added count five described the identical crime alleged in count one, that is, the larceny of $2,195.50 in currency by defendant from A. Pellegrino & Son, Inc., between October 11, 1950, and on or about June 22, 1951, in the county of Kings. The omission from count one, of an allegation of the use of false representations was a deficiency in pleading, resulting, until corrected, in the exclusion of evidence of those representations. Since count one had been regularly voted by a Grand Jury, the change in form, although not in substance, set up no constitutional question. And defendant’s substantial rights could not be invaded by such an amendment, unless he was in fact prejudiced, and prejudice is out of this case. There is, therefore, a clear differentiation from People v. Miles (289 N. Y. 360, supra), where the addition of a new count was held unconstitutional because it introduced into the indictment an additional charge of lottery, a crime essentially different from that of bribery found in the original indictment. In our case, the original indictment was constitutionally sufficient under established rules (People v. Farson, 244 N. Y. 413, 417; People v. Bogdanoff, 254 N. Y. 16, 23, 31, 32) and the power to amend was properly exercised since no vested rights were affected and the interests of justice required the amendment (see People v. Adler, 140 N. Y. 331, 335, 336).

Finally, we come to the Appellate Division’s ground for reversal: that is, that this amendment was not within the terms of section 295-j, since the change was made in relation to an offer of proof, and not “ according to the proof ”. We do not think that statutory phrase should be so tightly construed. This amendment was “ according to the proof ” in the sense that it conformed to the proof which the assistant district attorney had, in his opening, announced he would make, and which he had been prevented from making because of the error in pleading. Amendments (not under § 295-j) of indictments in various respects were allowed prior to the introduction of proof in People v. Johnson (104 N. Y. 213), People v. Hermon (45 Hun 175), People v. Lewis (132 App. Div. 256), and People v. Scanlon (132 App. Div. 528). In People v. Vanderborg (301 N. Y. 750) and People v. Ramistella (306 N. Y. 379, 385), this court held, at least in effect, that a conviction for larceny by false pretenses was not invalidated for failure to plead the false pretenses, when defendant failed to object to evidence of the representations. Those holdings are consistent with ours here: that when such objection is made, the indictment is not fatally defective but can in a proper exercise of discretion be appropriately amended without affecting defendant’s substantial rights.

The order of the Appellate Division should be reversed and the judgment of conviction reinstated.

Conway, Oh. J., and Dye, J., concur with Burke, J.; Fuld, J., concurs in a separate opinion; Desmond, J., dissents in an opinion in which Froessel and Van Voorhis, JJ., concur.

Order affirmed.