text:
    James Fitzgerald, Appellant, v. Harbor Lighterage Company, Respondent.
    Master and servant — negligence — workmen’s compensation —• maritime law — waiver — effect of notice by employer to State Industrial Board of advance payments to injured employee — acceptance by employee of payments of interlocutory awards of compensation does not extinguish cause of action for damages — stevedore injured on vessel in navigable waters not barred from maintaining action for damages, under maritime law, by filing claim for compensation and accepting interlocutory awards under Workmen’s Compensation Law — not chargeable with waiver, under section 113, as amended by chapter 615 of Laws of 1922, where it does not appear that employer and insurance carrier joined therein.
    1. The only effect of notice by an employer to the State Industrial Board that advance payments have begun to an employee for injury received in the course of his employment is to give the employer the right to credit such payments on account of an award of compensation if one should afterwards be made.
    2. Acceptance of an award, not final, under the Workmen’s Compensation Law, is at most an accord, and not a satisfaction, with the result that a cause of action for damages continues unextinguished, though subject to a set off to the extent of partial payments. {Larscy v. Hogan & Sons, 239 N. Y. 298, followed.)
    3. Where, therefore, a stevedore, injured while working on a vessel in navigable waters, filed a claim under the Workmen’s Compensation Law for compensation for the resulting disability and thereafter accepted payments of awards made by the Industrial Board, the proceeding, however, being continued and there having been no final award, he is not precluded from maintaining an action, under the maritime law, to recover for the injury.
    4. Nor may he be charged with waiver under section 113 of the Workmen’s Compensation Law, as amended by chapter 615 of the Laws of 1922, providing for awards in respect of injuries subject to the admiralty laws, in case the claimant, the employer and the insurance carrier waive their admiralty rights and remedies. Assuming the validity of the statute, claimant, employer and insurance carrier must unite in foregoing their admiralty remedies before the statute is operative. Payment by the employer of interlocutory awards would not bar it from appearing at the final hearing and contesting the claim for any sufficient cause, including lack of jurisdiction.

      Fitzgerald v. Harbor Lighterage Co., 216 App. Div. 764, reversed.
    (Argued November 30, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 21, 1926, which affirmed a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for a dismissal of the complaint under Civil Practice Rule 107.

      Charles A. Ellis and Silas B. Axtell for appellant.
    The tort here involved and the rights of the parties arising therefrom were not only maritime, but peculiarly maritime; and no State Workmen’s Compensation Act or other State legislation could oust, exclude, destroy, enlarge or affect the maritime rights of the parties. (U. S. Constitution, art. 3, § 21; U. S. Judicial Act, § 24; Clyde S. S. Co. v. Walker, 244 U. S. 255; Southern Pacific Co. v. Jensen, 244 U. S. 205; Butler v. Robins Dry Dock Co., 240 N. Y. 23; Lahti v. Terry & Tench Co., 240 N. Y. 292; Danielson v. Morse Dry Dock & Repair Co., 235 N. Y. 439; Warren v. Morse Dry Dock & Repair Co., 235 N. Y. 445; Christensen v. Morse Dry Dock & Repair Co., 214 N. Y. Supp. 732; Argentino v. Jarka Co., 214 N. Y. Supp. 218; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52; DeLovio v. Boit, 2 Gaff. 398.) The State Legislature, being powerless to contravene or interfere with the proper harmony and uniformity of the maritime law, is equally powerless to establish a contravening system which shall be concurrent therewith so as to require or occasion an election; and, being powerless to require claimants in a peculiarly maritime matter to proceed under a State compensation law, is equally powerless to require such claimants to make an election between maritime proceedings and proceedings under a State compensation law. The State act, being wholly ineffective to alter or affect plaintiff’s maritime rights, has established no jurisdiction over such rights; and neither its provisions nor its abortive operation can extinguish or exclude such maritime rights. Rights which are peculiarly maritime can be extinguished or excluded, because of proceedings under such a State act, only on contractual principles and only where it can be held that a settlement and accord had been reached and satisfaction made. (Southern Pacific Co. v. Jensen, 244 U. S. 205; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149.) There has been no accord and satisfaction of plaintiff’s claim for damages. (Larscy v. Hogan & Sons, 239 N. Y. 298; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149.)

      Paul Koch and A. G. Maul for respondent.
    The plaintiff employee, defendant employer and the insurance carrier having elected to accept the remedy provided for in the Workmen’s Compensation Law, the sole jurisdiction of the matter is vested in the State Industrial Board, Bureau of Workmen’s Compensation. (Danielson v. Morse Dry Dock & Repair Co., 235 N. Y. 439; Grant, Smith-Porter Co. v. Rohde, 257 U. S. 469; Shannanhan v. Monarch Eng. Co., 219 N. Y. 469; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149; Southern Pacific Co. v. Jensen, 244 U. S. 205; Lahti v. Terry & Tench Co., 240 N. Y. 292; Bockhop v. Phœnix Transit Co., 127 Atl. Rep. 624; Millers’ Indemnity Underwriters v. Brand, 46 Sup. Ct. Rep. 94; Holland v. Atlantic Stevedoring Co., 210 App. Div. 129; Brassel v. Electric Welding Co., 239 N. Y. 78; McEntee v. City of New York, 207 App. Div. 878; 237 N. Y. 19.)
   Cardozo, J.

Plaintiff was injured on a vessel while working as a stevedore in navigable waters. He complains that the negligence of the defendant, his employer, was the cause of his misfortune. The question is whether by contract or election following the injury the remedy under the maritime law has been displaced, and a new remedy established.

On the day of the accident, June 29, 1922, plaintiff gave written notice of his injury to the Industrial Commissioner and filed a claim for compensation for the resulting disability. On August 11, 1922, there was filed with the Commissioner a notice by the employer that advance payments had begun. The only effect of that notice was to give the employer the right to credit such payments on account of an award of compensation if one should afterwards be made (Workmen’s Comp. Law, § 20-a, as then in force; Cons. Laws, ch. 67). On December 14, 1922, there was an award by the Industrial Board of $360 for disability to that date, with a continuance of the proceeding. On May 22, 1923, there was an award of $240, the proceeding being again continued. Both these awards "were paid by the employer and accepted by the plaintiff. On June 19, 1923, the proceeding was placed on the final adjustment calendar for June 28, and on claimant’s failure to appear was adjourned to a later date, and then held in abeyance. There has been no final award for the entire disability. On August 22, 1923, this action was begun.

We held in Brassel v. Electric Welding Co. (239 N. Y. 78) that a final award when accepted by the claimant is an accord and satisfaction, and that causes of action for damages growing out of the same injuries, though based upon the maritime law, must be held to be extinguished. On the other hand, we held in Larscy v. Hogan & Sons, Inc. (239 N. Y. 298), that acceptance of an award not final is at most an accord, and not a satisfaction, with the result that the cause of action for damages continues unextinguished, though subject to a set off to the extent of partial payments (Williston, Contracts, § 1843, and cases cited; Reilly v. Barrett, 220 N. Y. 170).

The decision in Larscy v. Hogan & Sons, Inc., is decisive of the case at bar, unless an amendment of the statute, which took effect June 1, 1922, after Larscy had been injured, has changed the previously existing rule. By Laws of 1922, chapter 615, section 113 of the Workmen’s Compensation Law was amended so as to provide that awards according to the provisions of this chapter maybe made by the board in respect of injuries subject to the admiralty or other federal laws in "case the claimant, the employer and the insurance carrier waive their admiralty or interstate commerce rights and remedies, and the state insurance fund or other insurance carrier may assume liability for the payment of such awards under this chapter.”

We find it unnecessary to determine whether waiver in accordance with this section would supersede the remedy in admiralty. Construing our own statute, we hold that the waiver which it contemplates has never been announced. Claimant, employer and insurance carrier must unite in foregoing their admiralty remedies before the statute will be operative, if its validity be assumed. Nothing of the kind is proved. We put aside the question whether waiver by the claimant within the meaning of this section is sufficiently established by the election to file a claim, unaccompanied by express disclaimer of admiralty remedies. Even if this be assumed, the defendant is not helped unless employer and insurance carrier by some definitive expression have renounced their remedies as well. We see no basis for a finding that renunciation was effective when this action was begun. The employer had paid provisional or interlocutory awards for temporary disability. It may have been moved to this course by charity or by indifference or by dislike of litigation. Its acquiescence would not have barred it from appearing at the final hearing and contesting the claim for any sufficient cause including lack of jurisdiction. Indeed, in its answer to this complaint, it states that it acted under mistake of fact and law in paying what it did, and asks by way of counterclaim that the moneys be repaid. If there has been no definitive election by the employer, still less has there been any by the carrier. There is no evidence that the carrier supplied the moneys whereby the provisional awards were paid. There is none that it assumed liability by the terms of its policy for accidents subject to the maritime law. We think it is unimportant that since this action was begun, the defendant by answer and affidavit has invoked the protection of the statutory remedy. There is no need to dwell upon the point that it speaks even now for itself and no one else. Aside from this objection, the waiver is ineffective to destroy the cause of action unless definitively announced before a summons has been served. At the beginning of this action the Board was without jurisdiction to proceed to an award, for the conditions had not been satisfied upon which jurisdiction was dependent (Workmen’s Comp. Law, § 113). The Legislature did not mean, even if it could constitutionally enact, that a claimant should be left with his remedies in indefinite suspense. Waiver here as often is a term of equivocal significance (Beatty v. Guggenheim Exploration Co., 225 N. Y. 380, 389). In the setting of the context, it imports a concurrent evidence of intention having the force of an agreement to forego one set of remedies and abide by another. Until that intention is announced by all who must participate, a waiver by any one of them is inchoate and revocable. If this were not so, a claimant would find that he had barred himself from a remedy in the courts by a waiver ineffective to give jurisdiction to the Board. Election is inoperative when the alternative remedy selected is one denied by law. Choice has not been made until choice has been allowed (Schenck v. State Line Telephone Co., 238 N. Y. 308, 311).

Waiver being excluded, the right established by the maritime law continues unimpaired. Maritime jurisdiction is established both by the locus of the accident (Grant Smith-Porter Co. v. Rohde, 257 U. S. 469) and by the nature of the work (Great Lakes Dredge, etc., Co. v. Kierejewski, 261 U. S. 479; Ink Stevedoring Co. v. Haverty, 272 U. S. 50). When the first of these grounds of jurisdiction is present without the second, there is room for the contention that the Workmen’s Compensation Act of the state can be applied without material prejudice to any characteristic feature of the general maritime law ” (Millers’ Ind. Underwriters v. Braud, 270 U. S. 59; Terry & Tench Co. v. Lahti, 272 U. S. -). When the two grounds concur, the law of the State must bend to the supreme law of the land and the power of the nation (Great Lakes Dredge, etc., Co. v. Kierejewski, 261 U. S. 479; Gonsalves v. Morse Dry Dock & Repair Co., 266 U. S. 171).

The judgment of the Appellate Division and that of the Special Term should be reversed with costs in this court and the Appellate Division, and the motion for judgment denied with costs.

Crane, J.

(dissenting). I dissent from the majority opinion in this case on the ground that the acts of all the parties applying to and appearing before the Industrial Board, and the act of the claimant receiving partial payment of an award, -constituted a waiver under the amendments to the Workmen’s Compensation Law added by chapter 615 of the Laws of 1922. It is difficult for me to understand what would constitute a waiver if these acts did not.

The plaintiff filed a claim for compensation under the Workmen’s Compensation Act. All other parties in interest, the employer and the insurance carrier, appeared and participated in the proceedings. Partial awards were made, paid and accepted. Under any other procedure, such actions would have constituted an election of remedies. Our statute now provides, under the above amendment, that all parties may waive their right to proceed according to maritime law. There is nothing in the Constitution that I know of which prevents parties from waiving such a right or privilege. The Legislature may not arbitrarily declare certain things to constitute a waiver which do not evidence them to be such as matter of fact. Nevertheless, the Legislature may give effect to certain acts and proceedings as a waiver when they indicate that the parties have knowingly and deliberately made an election. The benefits of the Workmen’s Compensation Law have been universally recognized as a relief to the working man and from the uncertainty of negligent actions, dependent as they are upon so many caprices. If a workman, entitled to sue in admiralty for an injury, elects to take the benefits of a State Workmen’s Compensation Law, I can see no more reason why he should not thereafter be held to his acts the same as he would in admiralty for many other elections he might make. He can assign a claim for money due, or he can release for adequate or inadequate consideration a claim for injuries arising out of negligence. He does not need protection of the court as do infants and incompetents in these particulars.

Why is it, then, that he cannot accept under a State statute payment for injuries received within the State jurisdiction as matter of election? In my judgment, to compel an employee to waive his rights in admiralty before accepting employment would be going too far. It would be an attempt to oust the courts of their proper jurisdiction by means which in the stress of the labor market would have the color of coercion. But where a man knowingly makes an election after his injury, I can see nothing improper or illegal in holding him to it.

Therefore, I believe that this statute of ours is constitutional, and that under it the claimant in this case made his election. I believe in giving force to our statutes unless for some very clear reason they appear to be unconstitutional. Like all new subjects for legislation and judicial action, the rights of the working man under our two jurisdictions must be slowly and gradually developed. We cannot expect that all wisdom will be expressed in the first decision. Man is not infallible, and time develops many new viewpoints. In this process of adjustment, we must not be too ready to criticise decisions or find fault with uncertainties. The courts do the best they can. It is in this attitude that I approach the decision in this case, and feel that until the United States Supreme Court has decided that State Legislatures can in no way legislate for the benefit of longshoremen that I have decided to cast my vote in favor of our State statute and the right of such men to take compensation under the Workmen’s Compensation Law.

Pound, Andrews and Lehman, JJ., concur with Cardozo, J.; Crane, J., dissents in opinion in which Hiscock, Ch. J., and McLaughlin, J., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Pound, J.

license: Public Domain

text:
    New York Consolidated Railroad Company, Respondent, v. The City of New York, Appellant.
    Municipal corporations —• New York city — contract — commissioner of bridges of city of New York head of a department and subject to restrictions of charter in letting contracts for improvements — without power to enter into oral agreement with railroads that city would pay expense, in excess of specified sum, incurred in improving terminal of Brooklyn Bridge — separate defenses, inaction to recover excess, that commissioner was without authority, that contract was not made on competitive bids as required by charter and that no appropriation had been made prior to execution of contract, improperly dismissed.
    1. The commissioner of bridges of the city of New York, provided for in sections 100 and 601 of the charter (L. 1901, ch. 466), was the head of a department and subject to the provisions of section 419 directing that all contracts for work or supplies for the city in excess of $1,000 were to be founded on sealed bids after notice to bidders, and of section 1541 directing that no expense should be incurred by any of the departments, boards or officers of the city unless an appropriation should have been previously made covering such expense.
    2. Chapter 712 of the Laws of 1901, as amended by chapter 90 of the Laws of 1907, providing, among other things, for the adoption of plans and specifications for the extension or reconstruction of the Manhattan terminal of the Brooklyn Bridge, by the commissioner, with the approval of the board of estimate and apportionment of the plan, the contract and the scheme of payment, does not apply to the Brooklyn terminal, and, without some such authority, the commissioner had no power to bind the city by an oral contract with plaintiff’s predecessors whereby they were to make improvements of the Brooklyn terminal and pay the cost thereof to a specified amount, the excess to be paid by the city.
    3. In an action, therefore, to recover from the city of New York the amount of such excess cost, separate defenses that the commissioner of bridges was without authority to impose any portion of such expense on the city; that the contract for such services and material was not made on competitive bids after public notice, as required by the charter and that no appropriation was made available to pay therefor before the commissioner of bridges contracted therefor at the expense of the city, as required by the charter, were good, and judgment for the defendant should have been granted thereon. (City of New York v. Brooklyn City R. R. Co., 232 N. Y. 463, distinguished.)

      N. Y. Consolidated R. R. Co. v. City of New York, 216 App. Div. 814, reversed.
    (Argued November 23, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 17, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

      George P. Nicholson, Corporation Counsel (John F. O’Brien, Elliot S. Benedict, Alex I. Hahn and Thomas W. A. Crowe of counsel), for appellant.
    By reason of the absence of approval by the board of estimate and apportionment as required by chapter 712, Laws of 1901, as amended by chapter 90, Laws of 1907, the two operating agreements of August 7, 1907, are invalid. The same is true in respect to construction contracts rendered necessary by these two operating agreements. (Hearst v. Berri, 24 App. Div. 74; Hearst v. Shea, 156 N. Y. 169; People ex rel. McCarthy v. Shea, 51 App. Div. 227; 164 N. Y. 573.) The city, while acting through the commissioner of bridges in the execution of construction contracts for those improvements of railroad tracks and lappurtenances on the Brooklyn Bridge which were rendered necessary by the two operating agreements of August 7, 1907, was governed by those provisions of the Greater New York charter which require contracts for more than $1,000 to be in writing and to be founded upon competitive bids and which require a pre-existing appropriation sufficient to defray the expense. (Brady v. Mayor, etc., 20 N. Y. 312; McDonald v. Mayor, etc., 68 N. Y. 23; Molloy v. City of New Rochelle, 198 N. Y. 402; Hart v. City of New York, 201 N. Y. 45; Gage v. City of New York, 110 App. Div. 403; Winter v. City of Niagara Falls, 190 N. Y. 198; Hungerford v. Village of Waverly, 125 App. Div. 311; N. Y. Cons. R. R. Co. v. City of N. Y., 204 App. Div. 171.)

      Charles L. Woody and George D. Yeomans for respondent.
    The passage of chapter 712 of the Laws of 1901, and the amendment thereof by chapter 90 of the Laws of 1907, did not take away from the commissioner of bridges his power to agree with the respondent for the doing of the work done on city’s railroad. (City of New York v. Brooklyn City R. R. Co., 232 N. Y. 463; Hearst v. Berri, 34 App. Div. 75; Knapp v. City of Brooklyn, 97 N. Y. 523; Barber v. Rowe, 200 App. Div. 295; People ex rel. Shipston v. Thompson, 187 N. Y. Supp. 397; 196 App. Div. 923; 231 N. Y. 541.) The commissioner of.bridges had authority to maintain and cause to be maintained the railroad tracks as a part of the bridge, and for the public convenience to make changes in the trackage facilities, and to agree with the railroad company for it to do all the work and to agree that the city would reimburse the railroad company for expenditures over and above $110,000, and the law did not require the commissioner to advertise for bids. The charter provisions in regard to the letting of city contracts generally did not apply. (Casterton v. Town of Vienna, 17 App. Div. 94; 163 N. Y. 368; Whipple v. Christian, 15 Hun, 321; 80 N. Y. 523; Matter of Montefiore Home, 159 App. Div. 644; 211 N. Y. 549; People ex rel. New York, 200 N. Y. 423; Meyers v. City of New York, 58 App. Div. 536; Matter of Dugro, 50 N. Y. 513; Harlem Qas L. Co. v. Mayor, 33 N. Y. 309; Swift v. Mayor, etc., 83 N. Y. 528; Davis v. Mayor, etc., 83 N. Y. 207; Farmers’ Loan & Trust Co. v. Mayor, etc., 41 Bosw. 80; Smith v. Mayor, 2 How. Pr. 1.)
   Pound, J.

Plaintiff seeks to recover for work performed and material supplied in making improvements on the Brooklyn bridge and its terminals under the following conditions: In August, 1897, the trustees of the New York and Brooklyn bridge made written agreements with several of plaintiff’s predecessors for the construction and maintenance of track connections and platforms on the Brooklyn bridge at the expense of the railroads and the operation by them of trains across the bridge. Thereafter the commissioner of bridges of the city of New York became the official successor to the bridge trustees. Modifying agreements were entered into for (1) extension of tracks in the western or Manhattan terminal, (2) elevation of tracks over Sand street, Brooklyn, (3) rearrangement and rebuilding of tracks at the Brooklyn terminal, (4) construction of loops at the Brooklyn terminal. The complaint alleges that it was finally agreed between plaintiff’s predecessors and the commissioner of bridges that the railroads would make the improvements and would pay the cost thereof not to exceed $110,000 and the city would pay the excess of such cost over such sum; that such excess was $55,086.33, for- which judgment was demanded. This agreement was not evidenced by a formal document but was partly written and partly oral. The city’s answer denies the making of the contract. It sets up three separate defenses: 1. That the commissioner of bridges was without authority to impose any portion of such expense on the city; 2. That, the contract for such services and material was not- made on competitive bids after public notice, as required by the charter; 3. That no appropriation was made available to pay therefor before the commissioner of bridges contracted therefor at the expense of the city, as required by the charter.

The separate defenses were stricken out as insufficient in law. The order granting judgment thereon is brought up for review on this appeal. The agreement relied on was established on the trial by the evidence of a single witness who was not contradicted. The court thereupon directed a verdict for the plaintiff. We cannot ignore, in considering the points of law which remain for our consideration, the far-reaching consequences of a holding that the spoken word of the commissioner of bridges may bind the city.

The trustees of the New York and Brooklyn bridge were not governed by the Greater New York charter which did not exist when they functioned, nor by the Consolidation.Act or the Brooklyn charter. Their powers were conferred by a series of statutes and were very broad; We need not consider them in this connection. By section 601 of the Greater New York charter their office was abolished and their powers were vested in the commissioner of bridges as the head of the department of bridges “ subject, however, to the provisions, directions and limitations” of the charter and so far as they are consistent with and conformable to the provisions ” thereof. By the provisions of section 419 of the charter as it existed at the time the contracts in question were made a limitation was placed on the contractual power of all heads of departments. All contracts for work or supplies for the city of New York in excess of $1,000 were directed to be founded on sealed bids after public notice to bidders, and let, with certain exceptions, to the lowest bidder. Section 1541 directed that no expense should be incurred by any of the departments, boards or officers thereof unless an appropriation should have been previously made covering such expense. No head of a department possessed the arbitrary power to involve the city in legal liability to an unlimited amount by verbal contracts. The commissioner of bridges was the head of a department and was not exempt from obedience to these salutary and suitable restrictions, although it is obvious that even compliance with these provisions would not authorize the contract sued on and that such authority, if existent, must be found elsewhere.

That such authority as the commissioner of bridges is found to have asserted in this case was not within the legislative intention is evidenced by chapter 712 of the Laws of 1901, as amended by chapter 90 of the Laws of 1907, which was an act to relieve congestion and facilitate traffic on the New York and Brooklyn bridge by improvements at the westerly or Manhattan terminal. Only a small portion of the work here involved was done on the Manhattan terminal. The statute does not in terms apply to the Brooklyn terminal. While we cannot agree with the contention of the corporation counsel that this act applies to the Brooklyn terminal, it evidences the character of legislation called for to authorize the contract in suit and we find no other grant of authority for the commissioner of bridges to make a contract whereby the railroads are to do the work and the city is to share the expense. Such an arrangement, as we have suggested, does not fall within the provisions of section 419 of the charter for it is not germane thereto. The act provides among other things for the adoption of plans aod specifications for the extension or reconstruction of the Manhattan terminal by the commissioner with the approval of the board of estimate and apportionment and for entering into contracts for such extension and reconstruction with like approval with any of the railroad corporations operating on the bridge, and with like approval for the payment of the whole or any part of the cost of such construction by the city of New York. The Legislature thus placed a check upon the commissioner by requiring the approval of the board of estimate and apportionment to the plan, the contract and the scheme of payment. Without some such authority the commissioner had no power to bind the city by the contract in suit although he had, as a part of his general powers of management and maintenance, authority to agree with the railroads to have the work approved by him done at their expense. It follows that the separate defenses were good and judgment for the defendant should have been granted thereon.

It appears that in 1909 plaintiff presented its claim to the city as an “ illegal or invalid claim under section 246 of the city charter which permits the comptroller to certify to the board of estimate and apportionment for their consideration such claims against the city as have an equitable aspect although not legally enforcible. This action was begun in 1913. There the matter' slept until after the decision of this court in City of New York v. Brooklyn City Railroad Co. (232 N. Y. 463) which is cited below as a pertinent authority. In that case not only had the board of aldermen authorized the commissioner of plant and structures to enter into contracts in connection with the municipal operation of the Williamsburgh bridge and fixed the limit of his expenditure but the only question considered was whether the city of New York had, through its commissioner of plant and structures, an existing right or franchise to operate a railroad on the Williamsburgh bridge unrestricted by the provisions of the Public Service Commissions Law, or other like general statutes. The point here in issue was not even remotely involved.

It follows that the judgments should be reversed and the complaint dismissed, with costs in all courts.

His cock, Ch. J., Cabdozo, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgments reversed, etc.


author: Pound, J. Andrews, J. Crane, J.

text:
    The People of the State of New York, Respondent, v. Herbert Koerber, Appellant.
    Crimes — murder in first degree —• trial — voluntary intoxication as a defense— charge — trial of defendant charged with felony murder — refusal to instruct jury as to lower degrees of homicide proper only where no possible view of facts would justify any verdict except conviction as charged or acquittal.
    1. On trial- of a defendant charged with murder when engaged in i;he commission of a felony, a refusal to instruct the jury as to the lower degrees of homicide is proper and the jury should be instructed to find the defendant guilty of murder in the first degree or to acquit only where no possible view of the facts would justify any other verdict except a conviction of the crime charged or an acquittal.
    2. Under section 1220 of the Penal Law, while no act of a person in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition, the judge should, whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, allow the jury to take into consideration the question of intoxication in determining the existence of such particular intent ,vnd, if it should be of the opinion that the deliberation or premeditation necessary to constitute murder in the first degree did not exist, the crime may be reduced to a lower degree of murder or, in the absence of any intent to kill, then to manslaughter in some of its degrees. 3. When criminal intent in general is all that need be established, a drunken defendant is treated as if he knew the consequence of his acts; but where a particular or specific intent must be established, if the jury find that the mind of the defendant was so obscured by drink that he was incapable of forming that intent, it may justify itself in the reduction of a charge. The jury, however, should proceed with the utmost caution before arriving at the conclusion that the voluntary intoxication of an accused person has in any way altered the character or grade of his criminal act.
    4. Robbery is a particular species of crime of which “ the actual existence of any particular * * * intent is a necessary element ” within the meaning of section 1220 of the Penal Law. It follows that on trial of a defendant charged with murder in the first degree for killing when engaged in the commission of a robbery, where there is evidence that defendant had been drinking heavily and was intoxicated at the time so that he did not know what he was doing, the jury should have been instructed “ to take into consideration the fact that the accused was intoxicated at the time in determining the intent with which he committed the act.”
    5. It was error, therefore, that this court cannot overlook, for the trial court merely to instruct the jury that voluntary intoxication would not excuse a criminal act committed while under the influence of intoxication and to refuse to charge as to the different degrees of homicide and the rule of reasonable doubt as applied to lower degrees of crime and to instruct the jury as to intoxication as a defense in the language of the Penal Law. The evidence presented a serious question affecting a substantial right which should not have been withheld from the consideration of the triers of fact.
    (Argued December 1, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Queens County Court, rendered April 9, 1926 upon a verdict convicting the defendant of the crime of murder in the first degree.

      Jacob A. Visel, Edward U. Green and Harry A. Horton for appellant.
    The court below committed substantial error in refusing to charge the various degrees of homicide. (People v. Marwig, 227 N. Y. 382; People v. Smith, 232 N. Y. 239; People v. Marendi, 213 N. Y. 600; People v. Collins, 234 N. Y. 355; People v. Schleiman, 197 N. Y. 383; People v. Van Norman, 231 N. Y. 454.)

      Richard S. Newcombe, District Attorney (Charles W. Froessel of counsel), for respondent.
    The trial court committed no error in refusing to charge in reference to the various degrees of homicide, as upon the facts of this case the defendant was either guilty of first degree murder as a matter of law, or was entitled to an acquittal. (People v. Nichols, 230 N. Y. 222; People v. Schleiman, 197 N. Y. 383; People v. Giro, 197 N. Y. 152; People v. Chapman, 224 N. Y. 463; People v. Huter, 184 N. Y. 237; Buell v. People, 78 N. Y. 492; People v. Meegan, 104 N. Y. 529; People v. Cohen, 223 N. Y. 406; People v. Jernatowski, 238 N. Y. 188; Sparf & Hansen v. U. S., 156 U. S. 51; People v. Sanchez, 24 Cal. 17; State v. Young, 67 N. J. L. 223; People v. Nunn, 120 Mich. 530; Fertig v. State, 100 Wis. 301.)
   Pound, J.

Defendant was convicted of murder in the first degree for killing one Mahairas when engaged in the commission of a felony (Penal Law, § 1044, subd. 2), to wit, the crime of robbery, upon the person killed. The homicide occurred about five o’clock in the morning of Sunday, March 21, 1926. Defendant testified in his own behalf in substance that he had been drinking heavily and that he was intoxicated at the time so that he did .not know what he was doing. He narrated with considerable detail the occurrences of the night, both before and after the homicide, and the jury might properly have found that his intoxication was not such as to affect his responsibility for his acts had it been permitted to pass on the question. It was, however, instructed merely that voluntary intoxication would not excuse a criminal act committed while under the influence of intoxication. A request to charge the jury as to the different degrees of homicide and the rule of reasonable doubt as applied to lower degrees of crime (Penal Law, § 610; Code Crim. Pro. §§ 390, 444) was refused and also a request to instruct the jury as to intoxication as a defense substantially in the language of section 1220 of the Penal Law. The question of voluntary intoxication as defense for crime is thus fairly, although not with any great degree of precision, presented on the record, both on the facts and the law.

On the question of murder in the first degree where the killing is committed from a deliberate and premeditated design to effect the death of the person killed (Penal Law, § 1044, subd. 1), it has been held that, when the case contains testimony which if believed might have led the jury to conclude that at the time of the shooting defendant was intoxicated to a greater or less degree, the question of intoxication should be presented and explained to the jury and, if the question is a serious one and such instructions are omitted, a judgment of conviction should be reversed even in the absence of a proper request by the counsel for the defendant. (People v. Van Zandt, 224 N. Y. 354.)

The view is expressed that in felony murder the rule is different; that a refusal to instruct the jury as to the lower degrees of homicide is proper and that .the jury should be instructed to find the defendant guilty of murder in the first degree or to acquit. Such is the rule only “ where * * * no possible view of the facts would justify any other verdict except a conviction of the crime charged or an acquittal.” (People v. Schleiman, 197 N. Y. 383, 390; People v. Van Norman, 231 N. Y. 454.) We are, therefore, free to enter upon a consideration of voluntary intoxication as a fact for the consideration of the jury in such cases.

Penal Law, section 1220 (formerly Penal Code, § 22), provides:

“No act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.”

The effect of this section is discussed in People v. Leonardi (143 N. Y. 360) where the indictment was for a deliberate and premeditated killing. At common law, said the court, if a man made himself voluntarily drunk it was no excuse for any crime he might commit when he was in that condition, and he had to take the responsibility of his own voluntary act in becoming intoxicated. The fact was not to be considered even on the question of premeditation. Under the Code section, however, while no act of a person in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition, the judge should, whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, allow the jury to take into consideration the question of intoxication in determining the existence of such particular intent and, if it should be of the opinion that the deliberation or premeditation necessary to constitute murder in the first degree did not exist, the crime might be reduced to a lower degree of murder or, in the absence of any intent to kill, then to manslaughter in some of its degrees. That is, the law does not, as in the case of insanity, deem the act less criminal by reason of the voluntary intoxication of the accused, but the jury may take into consideration the fact of intoxication in determining the element of intent where a particular intent is a necessary element of the crime charged, not as calling for an acquittal, where the act charged, minus the particular intent, remains a criminal act, but as tending to reduce the character or grade of the offense in a proper case.

In a recent English case (Director of Public Prosecutions v. Beard, [1920] A. C. 479) the subject is fully considered. (See 8 Holdsworth’s History of Eng. Law, 442-, 443.) The learned lords agreed that at common law voluntary intoxication was regarded as an aggravation of the offense but held that the rule had been relaxed and that, while voluntary intoxication cannot excuse the commission of a crime, it may be taken into consideration where a specific intent is an essential element of the offense charged in order to determine whether the defendant had in fact formed the specific intent necessary to constitute the particular crime. The court pointed out, as did this court in the Leonardi Case {supra), that in the case of drunkenness the test of criminal responsibility is not the same as in the case of insanity, to be considered by the jury only if so extreme as to obliterate knowledge on the part of the defendant as to what he was doing or that he was doing wrong.

In brief then, the rule may be thus stated: When criminal intent in general is all that need be established the drunken defendant is treated as if he knew the consequence of his acts; but where a particular or specific intent must be established, if the jury find that the mind of the defendant was so obscured by drink that he was incapable of forming that intent, it may justify itself in the reduction of a charge.

Generally speaking murder in the first or second degree connotes the specific or particular intent to kill, while manslaughter in the first or second degree is felonious homicide when the intent to kill is absent. But when one engaged in the commission of a felony, his mind being fatally bent on mischief but without a design to effect death, kills a human being, at common law, the killing is said to be with malice aforethought and so murder, and the Penal Law attaches to the act the consequences of murder in the first degree. The People on an indictment for felony murder may fail to establish that defendant was engaged in the commission of a felony, but may offer evidence tending to show that the homicide was committed by him when engaged in a misdemeanor, which would reduce the offense to manslaughter in the first degree (Penal Law, § 1050, subd. 1) or in the commission of a trespass or other invasion of a private right, which would reduce it to manslaughter in the second degree. (Penal Law, § 1052, subd. 1.) Where the facts would justify a verdict based on such a theory, the degrees of manslaughter should be submitted to the jury. Thus, where the felony charged in the indictment is burglary and the entry is under circumstances or in a manner not amounting to a burglary, the offense is unlawfully entering a building, which is a misdemeanor. (Penal Law, § 405.) Could it be said with reason that on an indictment for murder in the first degree for killing when engaged in the commission of burglary, the offense might not thus be reduced to manslaughter in the first degree? Or, if it were shown that the killing took place before a building was entered while defendant was engaged in a trespass or other invasion of a private right, that the offense might not be thus reduced to manslaughter in the second degree? Nothing that was said in the Schleiman or the Van Norman case was pertinent to such a situation and nothing would be more at variance with our method of administering criminal justice than to say that such a defense presented no alternative but acquittal.

We now come to consider the charge against defendant as affected by his intoxication. Disregarding for the moment the statutory modification of common-law rules and principles and the fine distinctions not applicable hereto, we find that the gist of robbery is larceny by force from the person (Penal Law, §§ 2120, 2122), and that the gist of larceny is the taking and carrying away of personal property of another with the specific intent to steal such property (Penal Law, § 1290). If on an indictment for larceny or robbery the testimony leaves uncertain the intent with which the accused took the property, the jury should be instructed to give the defendant the benefit of the doubt. (Thorne v. Turck, 94 N. Y. 90, 95.) That the intent is usually to be inferred from the act does not change the rule that a taking without intent to steal is not larceny at common law. No statutory larceny is involved in the consideration of the instant case.

Robbery, as thus defined, is “ a particular species * * * of crime ” of which “ the actual existence of any particular * * * intent is a necessary element ” within the meaning of Penal Law, section 1220. It follows that the jury should have been instructed to take into consideration the fact that the accused was intoxicated at the time, in determining the * * * intent with which he committed the act.” The fact that the accused did not have the intent to rob would not mean that an acquittal should follow. It is conceivable, for example, that a youth whose mind was befuddled by drink might intend merely to stage a hold-up and yet be guilty of some degree of homicide. He might be so frightened by resistance as to shoot in the heat of passion, the emotion of fright, and thus be guilty of manslaughter in the first degree, or conceivably even of murder in the second degree. The jury would have to say under proper instructions as to the degrees of crime.

It is common knowledge that intoxicated men, although not in normal control of their faculties, do deliberate and premeditate and form a particular intent and commit criminal acts as they might not do if they were sober. Intoxication as such does not mitigate the offense. The question is not whether the accused was drunk but whether his intoxication was of such a character that it destroyed the power to form the particular intent which is a necessary element of the crime charged. The jury should, therefore, proceed with the utmost caution before arriving at the conclusion that the voluntary intoxication of an accused person has in any way altered the character or grade of Ms criminal act. (People v. Leonardi, supra.) His own evidence on the point need not be accepted as true even if uncontradicted. We may doubt whether the evidence of intoxication adduced by this defendant would carry sufficient weight with an intelligent jury to affect its verdict. It presented, however, a serious question affecting a substantial right wMch should not have been withheld from the consideration of the triers of fact. We cannot say that, with proper instructions, but one decision and that adverse to the defendant could reasonably have been reached.” When the alternative presented was conviction of murder in the first degree or acquittal, a conscientious jury would scarcely bring itself to a verdict of not guilty in this case. If they had been instructed that other verdicts were permissible, they might or might not have found the defendant guilty of a lesser degree of felomous homicide. We, therefore, cannot overlook the failure of the court to give proper instructions (People v. Marendi, 213 N. Y. 600, 619), as we might if we could reach the conclusion that there was a lack of sufficient evidence to go to the jury that defendant was, in the only relevant sense, too drunk to form the specific intent of committing robbery.

The judgment of conviction should be reversed and a new trial ordered. ”

Andrews, J.

(dissenting). Under the charge of the court we are here concerned solely with robbery. If guilty of that crime the defendant was guilty of murder in the first degree. He could be guilty of notMng else. If not guilty of robbery the jury was told that they must acquit him. Surely he may not complain because in that case they were not permitted to convict Mm of some lesser degree of homicide.

To be guilty of robbery it is essential that the defendant should have acted with a general criminal mtent. I assume that means the intent to take the property of the deceased in his presence, against his will, by means of force or fear. Ordinarily from the occurrence itself the jury might and should have inferred this intent. He may, however, negative this presumption. He may give evidence tending to show that he was insane at the time. Or that he was playing a joke on a friend. Or that he was so drunk that he could not and did not form any such intent. Thus a question of fact may be presented and if the jury have a reasonable doubt caused by this explanation he should be acquitted.

The issue is as to the existence of this intent, and the testimony offered by the defendant must be relevant to this precise issue. If it does not tend to show that the accused failed to know the nature and quality of his act or to show that he did not know that it was wrong, there is no question of insanity to be submitted to the jury. If it does not tend to show that he was so intoxicated that he did not and could not form an intent to rob, again there is no question for them.

In my judgment testimony of intoxication to the extent that would make the defendant’s intent a question of fact is wholly absent from this case. It should, at least, tend to show at the time of the robbery a complete absence of conscious volition — an ignorance of his acts and purposes. Therefore, the trial court was right in refusing to submit any such question to the jury. The general rule that no act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such a condition ” is applicable.

It is quite true that in a limited number of cases another rule applies. Now and then crimes are divided into degrees or species dependent upon the motive, purpose or intent of the criminal. His legal as well as his moral guilt varies with his mental attitude. Such a division is made as regards some kinds of homicide. So as to assault. Ordinarily, however, while other crimes may be divided into degrees, these degrees are not made dependent on any such purpose, motive or intent. There are degrees in arson, in burglary, in larceny, in forgery, in robbery itself, but no such test of guilt applies. The degree depends upon other circumstances. To convict there must be merely the usual general intent to commit the crime.

It is only in the exceptional cases of the first class that the jury may take into consideration the fact that the accused was to some extent intoxicated at the time in determining the question of the degree of guilt.

In my opinion the judgment of conviction should be affirmed.

Crane, J.

(dissenting). I concur with Judge Andrews but desire to add the following:

That the defendant shot and killed the deceased has been proved beyond any reasonable doubt. The evidence shows that the killing happened while the defendant was committing the crime of robbery — it was a holdup case — in which the defendant at the point of a pistol attempted to rob the deceased.

The attempted defense was that the deceased attacked the defendant leaving the store, and in the mixup the defendant’s pistol went off accidentally. No one takes any stock in this defense, not even the defendant’s counsel, who admitted on the argument that the defendant was guilty of a crime.

A discussion has arisen over the effect of liquor upon the defendant and whether the judge fully covered the law regarding, intoxication as affecting crime and the degrees of crime. In my judgment the discussion is immaterial to this case, as the evidence clearly shows that the defendant, if he had been drinking, was not so intoxicated as to lessen the crime, but rather to aggravate the seriousness of it. In the first place, he is the only one who states that he had been drinking, and then on the stand as a witness remembers every detail of his conduct and actions on the night in question. He boldly states how a few hours previous to killing the deceased, he had held up a restaurant keeper at the point of a pistol — pointed a gun at him and told him to hold up his hands. The money he took he says he did not intend to steal, that it was a kind of joke; the kind that the people of this State do not appreciate. It was no joke to the restaurant keeper. Later, the defendant details how he entered the place of the deceased and what happened there. Surely the defendant when he had'sufficient mind and intelligence to recollect months afterwards all that happened on the night of the shooting, was not under such influence from liquor as to lessen in any way his criminal acts, or deprive him of criminal intent. His intoxication may have excited him and weakened his judgment, but it did not absolve him from the responsibility which the law attaches to one who kills another in an attempt to take his property.

I am for affirmance for these reasons. ■

Cardozo, McLaughlin and Lehman, JJ., concur with Pound, J.; Andrews, J., dissents in opinion in which His cock, Ch. J., concurs and in which Crane; J., concurs in memorandum.

Judgment reversed, etc.


author: Hiscock, Ch. J.

text:
    The People of the State of New York ex rel. Banner Land Company, Appellant, v. State Tax Commission, Respondent.
    Tax — mortgage tax — real property — vendor and purchaser — transfer of real property subject to mortgages does not transfer personal responsibility from original mortgagor to purchaser — mortgage tax improperly imposed upon second mortgage collateral to first and securing same loan when tax has already been imposed for full amount secured by the two mortgages.
    1. A conveyance of real property under which the purchaser took title subject to certain mortgages and the original mortgagor transferred all the right, title and interest in and to -all further moneys which were to be advanced by the mortgagee on each of the said mortgage loans does not transfer personal responsibility for the loans from the original mortgagor to the purchaser.
    2. Where, at the time of recording the mortgages, the mortgagor paid a recording tax measured by the full amount to be advanced but had received less than one-third that amount when it transferred the premises and where, thereafter, the purchaser, in order to procure from the mortgagee the balance secured by and agreed to be advanced under the mortgages, was compelled to execute new mortgages upon the same premises as collateral security for payment of the original bonds and mortgages, a recording tax upon the new mortgages is improperly imposed. The tax, as provided for in section 253 of the Tax Law, is imposed upon the mortgages and is to be measured by the total debt secured, and a second mortgage collateral to the first one and securing the same loan ought not to be taxed when a tax has already been imposed upon the first mortgage for the full amount of indebtedness secured by the two mortgages. (People ex rel. U. S. Title Guaranty Co. v. Tax Comrs., 230 N. Y. 102; Matter of N. Y. 'State G. & E. Corp. v. Gilchrist, 209 App. Div. 771; affd., 240 N. Y. 552, distinguished.)

      People ex rel. Banner Land Co. v. State Tax Comm., 216 App. Div. 775, reversed.
    (Argued November 23, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 30, 1926, which unanimously confirmed, on certiorari, a determination of the State Tax Commission sustaining the imposition of a mortgage tax.

      Harry G. Anderson and Louis J. Moss for appellant.
    The primary and collateral mortgages are evidence of one and the same debt. Hence the determination of the State Tax Commission exacts a second tax upon the same debt, contrary to the letter and spirit of the Tax -Law. (Metropolitan Trust Co. v. State Board of Tax Commissioners, 172 App. Div. 653; People ex rel. Buffalo Co. v. State Board of Tax Commissioners, 144 App. Div. 612; 203 N. Y. 565; National Home Mortgage Investment Co. v. State Board, 182 App. Div. 699; New York State Gas & Electric Corp. v. Gilchrist, 209 App. Div. 771; 240 N. Y. 552.) The recital contained in each of the collateral mortgages is controlling upon the interpretation to be placed on said mortgages and the legal effect to be accorded thereto. (Metropolitan Trust Co. v. State Board of Tax Commissioners, 172 App. Div. 653; Wadsworth v. Lyon, 93 N. Y. 201; Baker v. Potts, 73 App. Div. 29.)

      Albert Ottinger, Attorney-General (Seth T. Cole of counsel), for respondent.
    The mortgages given by relator are not “ supplemental mortgages ” within the meaning of that term as used in section 255 of the Tax Law. (People ex rel. Astor Trust Co. v. State Tax Commission, 174 App. Div. 320; Griffin v. Burtnett, 4 Edw. 673; Hyman v. Hauff, 138 N. Y. 48.) The mortgages given by relator create and secure a new or further indebtedness or obligation other than the principal indebtedness or obligation secured by or which under any contingency may be secured by the mortgages given by the Emanel Construction Corporation. (People ex rel. U. S. Title Guaranty Co. v. State Tax Commission, 230 N. Y. 102; New York State Gas & Electric Corp. v. Gilchrist, 209 App. Div. 771; 240 N. Y. 552; People ex rel. Jewelers’ Building Corporation v. State Tax Commission, 214 App. Div. 99; 241 N. Y. 524; Hygienic Ice & Refrigerating Co. v. Franey, 142 App. Div. 143.)
   Hiscock, Ch. J.

The appellant seeks a reversal of an order confirming a determination of the State Tax Commission that a tax was properly demanded upon the recording of certain mortgages. Appellant’s grantor being the owner of extensive premises made a contract with the City Mortgage Company for certain building loans and in accordance therewith executed four mortgages with bonds, each upon different premises and securing the sum of $65,000 to be advanced thereunder. On recording thereof the mortgagor was charged and paid a recording tax measured by the full amount to be* advanced under and upon said mortgages. Thereafter and having received only about $20,000 upon each mortgage and loan it made a conveyance of the premises covered by the four mortgages to the appellant and under which the latter took title subject to the mortgages and the original mortgagor transferred to relator “ all the right, title and interest in and to all further moneys which were to be advanced by the City Mortgage Company on each of the said mortgage loans.”

When the relator attempted to procure from the mortgagee the balance secured by these mortgages and agreed to be advanced thereunder, the latter taking advantage of a clause in its agreement with the original mortgagor refused to advance such balance unless the relator should execute four new mortgages upon the same premises each in the sum of $44,750 to secure the balance which had not been advanced on the original mortgages.

I find nothing which brings into any dispute the correctness of the statement made in each of these new mortgages and which reads: “This mortgage and the bond which it secures are given as collateral security for the payment of a'bond for $65,000 * * * made by the Emanel Construction Corporation (appellant’s grantor) to the City Mortgage Company and a mortgage given to secure the same covering the premises above described made by said Emanel Construction Corporation to City Mortgage Company.” Thus we have the undisputed facts that each of the mortgages upon which a tax has now been imposed was not given to secure any new or additional loan but was given as collateral security to secure a bond and mortgage which had already been executed and taxed and upon and under which a balance of loan still remaining unpaid was to be advanced. Them is some discussion of where the primary and personal, responsibility for these loans rests and the materiality of which is not apparent. The respondent, of course, is wrong when it argues that the present appellant has become the primary source of repayment of the sums which had been advanced on the mortgages at the time when the conveyances were made to it. Those conveyances were made subject to the mortgages and not subject to the payment thereof and hence personal responsibility was not transferred from the original mortgagor to the appellant. (Wadsworth v. Lyon, 93 N. Y. 201.) It would also appear that it was the contemplation of the parties that the original mortgagor should remain personally responsible for the amounts which after such conveyances might be advanced under these original mortgages because it was provided that the original mortgagor assigned to appellant “ all the right, title and interest in and to all further advances which were to be advanced by the City Mortgage Company on each of said mortgage loans,” referring to the original mortgages.

But, however this may be, the tax which has been imposed is upon the mortgage and not upon personal liability created by a bond and the point of this appeal to be constantly borne in mind is that the present mortgages were executed upon the same lands as covered by the original ones and merely as collateral security to those original mortgages under which the advances were to be made and upon which taxes had been paid in full for the amount to be advanced. Thus, concededly, if the relator is taxed upon the present mortgages it will pay a double tax upon nearly two-thirds of the loan which was provided for and secured by the original mortgages and the question is whether the taxing statute requires or permits this. I do not think that it does.

Section 253 of the Tax Law- provides so far as pertinent as follows:

; Recording Tax. A tax of 50 cents for each one hundred dollars and each remaining major fraction thereof of principal debt or obligation which is, or under any contingency may be secured at the date of the execution thereof or at any time thereafter by a mortgage on real property situated within the State * * * is hereby imposed on each such mortgage. * * * ”

It has been held by this court (People ex rel. U. S. Title, etc., Co. v. Tax Commission, 230 N. Y. 102) that this tax is imposed upon the mortgage and is to be measured by the total debt secured ”. That seems to be a perfectly justifiable interpretation of the statute and it would seem to follow that if two mortgages are executed, one a primary one and the other a collateral mortgage to the first one, and both to secure the same indebtedness, and that if the full tax measured by that indebtedness had been paid upon the first mortgage thé second and collateral mortgage should be free from taxation.

Certainly, in the present case, if the indebtedness of $65,000 in each case had been secured by two mortgages coincidently executed instead of by one the aggregate taxation upon the two mortgages would have been measured by the total indebtedness and would not have been increased because there were two mortgages, and by the same reasoning it seems clear that a second mortgage collateral to the first one and securing the same loan ought not to be taxed when a tax has already been imposed upon the first mortgage for the full amount of indebtedness secured by the two mortgages.

I do not see anything in the cases relied on by the Appellate Division which is contradictory of this view. In the case of People ex rel. U. S. Title, etc., Co. v. Tax Commission (supra) the mortgage originally given had been discharged of record and a new mortgage, quite independent of the first one in its effect, had been given to secure a different and larger sum. Under those circumstances there was clearly a new transaction and it was ;simply held that the new mortgage was not supplemental within the provisions of section 255 of the Tax Law. The other case (Matter of New York State G. & E. Corp. v. Gilchrist, 209 App. Div. 771; affd., on opinion of Mr. Justice Kellogg, 240 N. Y. 552) if pertinent at all seems to affirm the views herein expressed rather than to contradict them. In that case after bonds secured by a mortgage upon which a tax had been duly paid were issued, the relator made a new issue of bonds for the purpose of replacing the issue theretofore made and secured by a mortgage. These new bonds were delivered to the holders of the old bonds for the purpose of retiring the latter and were secured by a new mortgage, and the question arose whether a mortgage tax could be imposed because of this later issue. This tax was exacted by the recording officer but on appeal it was held that the same should be refunded and in reaching this conclusion it was written: “ There was here the creation of no new relationship; there was no new creditor, no new debtor, no new loan. It must be remembered that it is the principal sum of a loan, not the interest to be paid thereupon, which measures a mortgage tax. Here there was no new principal sum although there was a new interest rate and a new date of payment. 1 Whenever a further amount is to be advanced under the original mortgage,’ a tax, measured by the advance, must be paid. No further amount ’ was advanced under this mortgage.” That is precisely the present situation. No new or further sum is being advanced upon the mortgages which are now being taxed. Under the exactions of the mortgagee they are simply being executed as collateral to and for further security of the first mortgages which already had been taxed for the full amount to be advanced.

It may also be urged with force that the new mortgages come within the spirit and fair interpretation of that provision of the Tax Law which reads:

“ Supplemental Mortgages. If subsequent to the recording of a mortgage on which all taxes, if any, accrued under this article have been paid, a supplemental instrument or mortgage is recorded for the purpose of correcting or perfecting any recorded mortgage, * * * such additional instrument or mortgage shall not be subject to taxation under this article, unless it creates or secures a new or further indebtedness or obligation other than the principal indebtedness or obligation secured by or which under any contingency may be secured by the recorded primary mortgage, * *

As has been stated the mortgagee under its agreement with the first mortgagor had the right to refuse to make further advances because of the transfer by that mortgagor to the present mortgagor and by virtue of this right it insisted that the latter should execute the second mortgage as collateral before making the full advances under the first mortgages. For practical purposes the second mortgages were, therefore, executed for the purpose of perfecting ” the original mortgages. By the execution of the latter mortgages the first ones were so strengthened or perfected that the mortgagee was willing to proceed under them and make the advances which it had originally agreed to make.

Under these circumstances we think that the order of the Appellate Division and the determination of the Tax Commission should be respectively reversed and annulled with costs in this court and in the Appellate Division, and the moneys paid under protest be returned to the relator, with fifty dollars costs and disbursements.

McLaughlin, Crane and Lehman, JJ., concur; Cardozo, Pound and Andrews, JJ., dissent.

Ordered accordingly.


author: Per Curiam.

text:
    Guy F. Cleghorn, Respondent, v. The Ocean Accident and Guarantee Corporation, Limited, of London, Appellant.
    Insurance (indemnity) — contract — interest — action' to recover upon policy of indemnity insurance — improper inclusion in judgment of interest from date when accident occurred to date of entry of judgment for damages against plaintiff.
    In an action to recover under a policy of indemnity insurance for liability incurred by plaintiff as the result of an automobile accident, where the policy provided for payment of “ interest accrued on the judgment rendered ” against plaintiff, the inclusion in the judgment of an item of interest on the principal sum found due, from the date when the accident occurred to the date' when the judgment for damages was entered against plaintiff, is erroneous. The effect of the provision of the policy cannot be overcome by the statutory provision (Decedent Estate Law, § 132) requiring the clerk on rendition of the verdict to add interest from the date of the death of the person injured. The two provisions are written from entirely different viewpoints and each one is independent of the other.

      Cleghorn v. Ocean Accident & Guarantee Corp., 216 App. Div. 342, modified.
    (Argued November 30, 1926;
    decided December 31, 1926.)
    Appeal from a judgment, entered April 15, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of Special Term denying a motion by plaintiff for summary judgment and granted such motion.

      Everett F. Warrington and Robert H. Woody for appellant.

      Henry A. Uterhart and Alfred M. Schaffer for respondent.
   Per Curiam.

This action was brought to recover under an indemnity policy issued by the appellant for liability incurred by the plaintiff as the result of an accident caused by his automobile, the principal liability being íimited to $5,000, to which was to be added certain interest, costs and expenses.

We agree with the Appellate Division that upon the facts presented by the plaintiff this was a proper case for a summary judgment and, therefore, we shall not discuss this question which has been amply considered in the opinion of Mr. Justice Kapper.

We think, however, that the court has erroneously permitted to be included in this judgment an item of $1,100 interest on the principal insurance sum of $5,000, from the date when the accident occurred to the date when the judgment for damages caused by such accident and resulting injuries was entered against the plaintiff.

By the terms of the policy the defendant was bound to pay interest accrued on the judgment rendered ” against plaintiff. That would seem to be a perfectly simple statement. The plaintiff, however, seeks to overcome it by the provision which required the clerk on rendition of the verdict in the action brought against plaintiff to add interest from the date of the death of the person who was injured. We do not think, however, that this latter provision overcame the provision of the policy. In fact we see no connection between the two things. The statute in death cases requires addition to the verdict as part of the damages of interest from date of death to verdict. The policy provides for interest from the date of entry of the judgment. • The two provisions are written from entirely different viewpoints and each one is independent of the other.

Therefore, the judgment which has been entered should be modified by subtracting the sum of $1,100, being the interest on $5,000 from October 16, 1916, the date of the death of the person who was injured, to June 16, 1920, the date of the entry of the judgment recovered for said death, and also the interest on said $1,100, and, as so modified, affirmed, without costs to either party.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur; Lehman, J‘., not voting.

Judgment accordingly.