text:
    In the Matter of The City of New York, Appellant and Respondent, Relative to Acquiring Title to Real Property at Rockaway Beach, Required for the Establishment of Public Parks. Hammel Boardwalk Corporation et al., Respondents and Appellants.

      Argued February 24, 1942;
    decided April 23, 1942.

      William C. Chanter, Corporation Counsel (Daniel M. Cohen, Julius Isaacs and William A. Marks of counsel), for City of New York, appellant and respondent.
    The Appellate Division, by limiting the city to interest on unpaid taxes to the date of vesting, erred since the city had merely been paid taxes concededly due, together with interest to the date of payment, to which the city was entitled under section 173-1.0 of the Administrative Code (L. 1937, ch. 929). The vesting of title in condemnation did not abrogate the city’s right to such interest, but merely gave the owner the right to an award, together with the interest permitted on such award by the condemnation statute. (Matter of Ittleman [City of New York], 286 N. Y. 150; Matter of Trustees of New York & Brooklyn Bridge, 137 N. Y. 95; Matter of City of New York [Houghton Ave.], 266 N. Y. 26; Matter of City of New York [Bronx River Parkway], 284 N. Y. 48; A. F. & G. Realty Corp. v. City of New York, 313 U. S. 540; Bell v. City of New York, 66 App. Div. 578; Daly v. Sanders, 9 N. Y. State Repr. 794; 118 N. Y. 688; United States v. Certain Land in City of St. Louis, 29 Fed. Supp. 92; United States v. Certain Parcels of Land in City of Philadelphia, 41 Fed. Supp. 415.)

      Meyer D. Siegel and Mathew M. Balmuth for Hammel Boardwalk Corporation et al., respondents and appellants.
    Owners are entitled to be relieved of all burdens incident to their ownership on the day title vests in the city; the offsets of the taxes and accrued interest against the award becomes operative on the day title vests in the city as a matter of law and all interest and penalties cease after that date. (Matter of City of New York [Elm St.], 239 N. Y. 220; Matter of Nunes [W. 13th St.], 226 N. Y. 246; Matter of Mayor, 40 App. Div. 281.) The Appellate Division erred in compounding the interest on the first mortgage. (Muldoon v. Mid-Bronx Holding Corp., 287 N. Y. 227.) The Special Term and the Appellate Division in affirming, erred in the denial of the cross-motion of the owner for an accounting. (Haight v. Haight & Freese Co., 112 App. Div. 475.)

      Bennet M. Blumenthal and A. D. Schlechter for Manufacturers Trust Company, respondent and appellant.
    As the first mortgagee has no recourse to other assets of the former fee owner said mortgagee is entitled, as against the holders of a second mortgage, to payment in full of the balance of principal, plus accrued interest in accordance with the terms of the bond and mortgage. (Gates v. De La Mare, 142 N. Y. 307; Germantown Sav. Bank v. Dunn, 135 N. Y. Supp. 56, 1114.)

      H. H. Nordlinger and Jacob M. Dinnes for Van Courtlandt Organization, Inc., amicus curiæ.

    The rights of the parties are determined as of the date the city takes title to the land in question and not the date when payment of the award is tendered. (Matter of Van Etten v. City of New York, 226 N. Y. 483; King v. Mayor, 102 N. Y. 172; Matter of City of New York [43rd Ave.], 256 App. Div. 982; 282 N. Y. 42; Matter of Braico, 235 App. Div. 132; 260 N. Y. 625; Merriman v. City of New York, 227 N. Y. 279; Utter v. Richmond, 112 N. Y. 610; Matter of City of New York [Boscobel Ave.], 242 App. Div. 392; 266 N. Y. 503; Derring v. Schreyer, 171 N. Y. 451; Irving Trust Co. v. Hughes, 239 App. Div. 74; Matter of City of New York [Walton Ave.], 244 App. Div. 125; 270 N. Y. 513; Matter of Bankers Investing Co., 141 App. Div. 591; Carpenter v. City of New York, 51 App. Div. 584.)

      Abraham Brill, Frank F. Bergenfeld and Herbert Baer Brill for Samuel Frank, amicus curiæ.

   Rippey, J.

The City of New York, pursuant to authorization by the Board of Estimate, instituted condemnation proceedings under the provisions of chapter 12 of the Charter of the City of New York (effective Jan. 1, 1938) relating to assessable improvements to acquire title to a strip of property in Queens county extending two miles along the Rockaway Beach shore for the purpose of converting such property into public parks and title vested in the city on May 12, 1938. Included in this strip of property taken were Damage Parcels 342, 343, 346 and 347 which consisted of improved property owned in fee by the Hammel Boardwalk Corporation.

At the date of the vesting of title in the city, there were two mortgage liens existing against the said parcels. The first mortgage lien arose on a mortgage dated June 10, 1931, made, executed and delivered by the said owner to the Title Guarantee & Trust Company in the amount of $25,000 and held, by assignment, by the Manufacturers Trust Company, as trustee for certificate holders of Series No. 181,508 of Bond & Mortgage Guarantee Company, upon which there was a balance due on principal of $24,750, with interest at six per cent per annum from June 1, 1934. The second mortgage lien was held by Katherine A. Graham and others for $15,000, with a balance of $5,600 unpaid interest. There were also unpaid taxes, assessments and water rents owing to the city of New York in the sum of $6,878.74 with accrued interest, and possible unpaid franchise taxes due the State of New York for the years 1933 to 1935 from the owner corporation which was dissolved by proclamation in 1935. The final decree in the condemnation proceeding is not printed in full in the record on appeal. However, the briefs indicate with such parts of the .decree as are printed and referred to in the order appealed from that the final decree, dated November 29, 1939, awarded $40,450 damages to the owner for land, improvements and fixtures taken with interest on the award at the rate of six per cent per annum from the date title vested until July 1, 1939, which was the effective date of chapter 594 of the Laws of 1939 by which the rate of interest was reduced to four per cent per annum, and thereafter at the rate of four per cent, subject to the aforesaid liens.

On July 29, 1940, a request was made by the attorney for the owner and the second mortgagees that the amount owing for arrears of taxes and assessments be paid. Thereupon the Comptroller delivered a warrant for $8,149.76 to the City Collector. That figure included interest on the delinquent taxes, assessments and water rents not only to the date on which title vested but also up to the date of such payment. The Comptroller also issued two warrants (but held them undelivered) to the Hammel Boardwalk Corporation in the amounts of $33,125 and $2,045.77, respectively. The mortgage lienors being unable to agree upon the amount payable to the Manufacturers Trust Company, as trustee, the latter, on September 29,1940, upon notice to the city and others interested, applied at Special Term (the court having in the final decree expressly retained jurisdiction in the condemnation proceeding) for an order directing the Comptroller to pay it the amount of the first mortgage lien with interest at six per cent (the rate provided for in the mortgage) together with certain advances alleged to have been made by the trustee on behalf of the owner. By cross-motion the owner and the second mortgagees sought an adjudication of the rights of the interested parties in the award and the owner sought an accounting from the trustee and its predecessors of their operation of the property prior to condemnation under an assignment of rents. At Special Term it was held that the amount that the city had taken from the award was correctly appropriated, viz., the amount of the taxes, assessments and water rents with statutory interest to the date of payment, granted the motion of the Manufacturers Trust Company, denied the cross-motion of the owner and second lienors, ordered the two warrants remaining in the hands of the Comptroller canceled and directed the Comptroller to issue warrants for the balance of the award remaining in his hands represented by the aforesaid two warrants so far as necessary (1) to the City Collector'for any unpaid taxes, assessments or other charges levied on the damage parcels which were a lien against them at the time of acquisition thereof by the city, (2) to the Manufacturers Trust Company, as trustee, for $24,750 together with interest at six per cent per annum from June 1, 1934, the date of payment, less $73.44 balance in its hands on account of rents collected, provided that a proper discharge of the mortgage be furnished and that all unpaid state franchise taxes be satisfied, (3) to the said trust company as trustee for $420.50 to be held subject to a later accounting, and (4) to hold the balance, if any, subject to the further order of the court. Upon appeal to the Appellate Division, second department, by the owner and the second mortgagees, that court unanimously modified the order of Special Term, holding (1) that the city might collect interest on the unpaid items of taxes only up to the date upon which title vested (May 12, 1938), (2) -that the1 first mortgagee is entitled to the principal of its mortgage plus accrued interest at six per cent up to the date of vesting with interest on the total amount (principal plus interest' accrued before vesting) at six per cent from May 12, 1938, to July 1, 1939, and at four per cent thereafter to the date of payment, and (3) that the city should be required to pay interest on the award from May 12,1938, to July 1, 1939, at six per cent and thereafter to the date of payment at four per cent. All parties adversely affected by the order of modification have severally appealed to this court.

The appeal by the city is limited to a determination of the question as to whether it may collect interest on the unpaid taxes, assessments and water rents from the date of vesting of title to July 29, 1940, the date when they were paid. Before interest can be allowed in any case it must be by virtue of some contract express or implied, or by virtue of some statute, or on account of the default of the party liable to pay, and then it is allowed as damages for the default.” (Matter of Trustees of New York & Brooklyn Bridge, 137 N. Y. 95, 98.) As affecting the questions here, interest upon the award and the date when it ceased to run and also interest upon delinquent taxes, assessments and water rents and the date when such interest ceased to run is controlled exclusively by statute which, under the facts in this case, cannot be modified or varied by any equitable considerations. Interest is payable by the city upon the damages awarded by the court from the date of vesting until the date of the final decree (Administrative Code, L. 1937, ch. 929, § B15-28.0, p. 169), and at the rate of four per cent per annum after the date of entry of the final decree until paid (General Municipal Law, § 3-a; Cons. Laws, ch. 24), except in the case of an award made in assessable improvement proceedings where interest shall cease to run six months after such filing date with exceptions not important here (Administrative Code, § B15-28.0 [b], p. 170). The City Collector was required to collect interest on delinquent taxes, assessments and water rents to the date of payment and account to the city for the interest collected as part of the delinquent tax liens (Administrative Code, §§ 173-1.0, pp. 90, 91; 415[1]-17.0, pp..221, 222 ; 415[1]-12.0, p. 218; Charter, §§ 173, 415, 1). Although the tax statutes recognize that the city may take property by eminent domain, there is no provision for the cessation of interest upon the happening of any such event. On the contrary, reduction of interest upon any taxes, assessments and water rents below the amount fixed by law is forbidden (Administrative Code, § 415[l]-8.0, p. 217), and all taxes, assessments and water rents and interest thereon constitute liens until paid (Administrative Code, § 415[l]-7.0, p. 217). Upon vesting of title such hen is shifted from the land to the award (Matter of City of New York [Houghton Ave.], 266 N. Y. 26). Those liable for the payment of such delinquent tax liens were furnished with some measure of relief from interest by the provisions of section B15-29.0 of the Administrative Code (p. 171) when the lands subject to such liens are taken by eminent domain whereby they may apply to the Board of Estimate for payment in advance of the final decree of sixty per cent of the damages as estimated by the city’s real estate expert. Of course, they can stop interest running at any time by paying the delinquent taxes. If any additional relief is to be granted to the taxpayer it must be granted by the Legislature. It cannot be granted by the courts.

The Manufacturers Trust Company, as trustee, claims that it is entitled to six per cent interest rather than four per cent interest upon its mortgage lien after July 1, 1939, until the date of payment. A similar contention has been rejected in Muldoon v. Mid-Bronx Holding Corp. (287 N. Y. 227). In the case of each mortgage, the lien of the amount due as of the date of vesting was transferred from the land to the award.

In this condemnation proceeding, the action of the lower courts in denying the cross-motion of the fee owner and the second mortgagee was discretionary and we find no circumstances in this record which would warrant us in disturbing that exercise of discretion.

The orders should be modified in accordance with this opinion and as so modified affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Rippey, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Patrick Fitzgerald, Appellant.

      Argued January 15, 1942;
    decided April 23, 1942.

      John J. O'Brien and Arthur F. Gaynor for appellant.
    The defendant was convicted solely on his own statements in violation of section 395 of the Code of Criminal Procedure. (People v. Roach, 215 N. Y. 592; People v. Taleisnik, 225 N. Y. 489; People v. Deacons, 109 N. Y. 374; People v. Steinmetz, 240 N. Y. 411; People v. Page, 162 N. Y. 272.)

      Elbert T. Gallagher, District Attorney (George M.Fanelli of counsel), for respondent.
    The proof meets the requirements of section 395 of the Code of Criminal Procedure. (People v. Brasch, 193 N. Y. 46; People v. Jaehne, 103 N. Y. 182; People v. Lo Turco, 256 App. Div. 1098; People v. Lytton, 257 N. Y. 310; People v. Badgley, 16 Wend. 53; People v. Kief, 126 N. Y. 661; People v. Dixon, 231 N. Y. 111.)
   Rippey, J.

The defendant, Patrick Fitzgerald, has been tried and convicted as a principal as defined in section 2 of the Penal Law, under an indictment charging that on or about March 25, 1940, he “ did aid and abet and act in concert with one John J. Condon in asking and agreeing to receive a bribe and sum of money in violation of section 372 of the Penal Law of the State of New York, in that the said Patrick Fitzgerald * * * did ask and agree to receive from one Joseph Friedlander and Stanley DeCicco for and on behalf and for the benefit of the said John J. Condon, the said John J. Condon, being a public officer, to wit, the Mayor and a member of the Common Council of the City of Yonkers, duly elected" and “ qualified * * *, the sum of Three Thousand Dollars ($3000.00) upon the agreement and understanding that the said John J. Condon, would favor, support, bring about,. procure and vote for the enactment by the Common Council of the said City of Yonkers an ordinance of said Common Council, licensing the operation in the said City of Yonkers, of devices commonly known as pin ball machines.”

Section 372 of the Penal Law, under which this indictment is laid, provides: “ A judicial officer * * * a person elected or appointed a judicial officer or to execute any of the functions of a . public officer * * *, who asks, receives, or agrees to receive a bribe, or any money, property, or value of any kind, or any promise or agreement therefor, upon any agreement or understanding that his vote, opinion, judgment, action, decision or other official proceeding, shall be influenced thereby, or that he will do or omit any act or proceeding, or in any way neglect or violate any official duty, is punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or by both.”

The Mayor of the city of Yonkers was the person whom the People asserted in the indictment, in the bill of particulars and in all ■ proceedings at the trial accepted or agreed to receive a bribe from the pin ball operators for his support of an ordinance of the Common Council of the city which would authorize licensing the operation of the pin ball machines. It is not claimed nor is there any evidence that any money was paid to any one. In the bill of particulars the People assert that “ it is not claimed that the said defendant actually received any money or other thing of value from the said Joseph Friedlander and Stanley DeCicco in pursuance of the said asking and agreeing as mentioned in the indictment herein.” There is no claim or proof that the defendant sought a bribe for himself as a public officer.

It was, therefore, essential for the People to prove by competent and sufficient legal evidence that the Mayor of the city of Yonkers was involved in the crime charged in the indictment before conviction of defendant was possible. Defendant did not take the stand as a witness at the trial. His testimony before the grand jury which found the indictment and his confessions to others outside of judicial proceedings, however, were admitted in evidence, in which he directly involved the Mayor in knowledge of and complicity in the attempted bribery. Exclusive of those confessions, there is no evidence in the record, direct or circumstantial, that the crime of bribery or attempted bribery, as set out in the indictment, had been committed by any one. The testimony of the pin ball operators showed or tended to show only that the defendant solicited money from them for the purpose of procuring the passage of a licensing ordinance in aid of which solicitation the defendant stated that he could bring about the passage of the ordinance. It was further established and conceded that no such ordinance was at any time proposed in or passed by the Common Council, of which the Mayor was a member. None of the pin ball machine operators had any knowledge of any meeting or communication on the subject between defendant and the Mayor or defendant and any of the other Councilmen. They testified that they did not know whether defendant was acquainted with the Mayor or with any Councilman or whether any one of them had been approached on, or was interested in, an ordinance to license pin ball machines. Four of the five denied that they had' heard the name of the Mayor or that of any of the Councilmen mentioned. The fifth, DeCicco, alone testified that on one occasion when he and defendant were alone, I asked him who was this money supposed to go to and he says I think it was supposed to be given to Condon, but probably he just said that to say something.” The operators told defendant that they would not accept his proposal or advance any money.

As before stated, to establish the corpus delicti it was necessary to prove that the Mayor was involved in the crime, that he was the public officer who accepted or agreed to accept a bribe. The Mayor was not indicted; he was not on trial. By legislative mandate it is provided that A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him * * * but it is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed” (Code Crim. Proc. § 395). The mandate of the statute is clear. It needs no construction nor can its meaning be stretched beyond its clear import. In many cases the subject of the necessity of evidence beyond a confession has been a matter of discussion. Among them are the following: People v. Badgley (16 Wend. 53); People v. Jaehne (103 N. Y. 182, 199); People v. Deacons (109 N. Y. 374, 378); People v. Burness (178 N. Y. 429, 431); People v. Brasch (193 N. Y. 46, 60); People v. Giusto (206 N. Y. 67, 77); People v. Roach (215 N. Y. 592, 600) ; People v. Lytton (257 N. Y. 310); People v. Lo Turco (280 N. Y. 844). However, in all of those cases where conviction has been sustained, there has been evidence, direct or circumstantial, exclusive of that found in the confessions, that the crime charged had been committed. In other cases where the rule was applicable no conviction of a defendant has been permitted to stand where there was no evidence dehors the confession, either direct or circumstantial, to prove that the crime charged had been committed (People v. Plath, 100 N. Y. 590; People v. Caniff, 2 Park. Cr. Rep. 586; United States v. Mulvaney, 4 Park. Cr. Rep. 164; People v. Hennessey, 15 Wend. 147; People v. Nentars, 239 App. Div. 109; Wistrand v. People, 213 Ill. 72).

Exclusive of the confessions of defendant in the case at bar, there is no evidence, direct or circumstantial, from which it might be found that the crime charged in the indictment was committed.

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Loughran, Finch, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


author: Lewis, J.

text:
    Alberta G. Clark, an Infant, by Delbert Clark, Her Guardian ad Litem, Respondent, v. City of Buffalo, Appellant. Delbert Clark, Respondent, v. City of Buffalo, Appellant.

      Argued March 9,1942;
    decided April 23, 1942.

      Edward J. Sullivan, Corporation Counsel {Bart J. Shanahan of counsel), for appellant.
    The alleged failure of the defendant to remove a piece of broken glass from its premises was not the proximate cause of plaintiff's damages. (Laidlaw v. Sage, 158 N. Y. 73; Maloney v. Kaplan, 233 N. Y. 426; Ship v. Fridenberg, 132 App. Div. 782; Morse v. Buffalo Tank Corp., 280 N. Y. 110; Hoose v. Drumm, 281 N. Y. 54; Graff v. Board of Education, 283 N. Y. 574; Rosenfeld v. Matthews Co., 282 N. Y. 755; Beetz v. City of Brooklyn, 10 App. Div. 382.) The defendant was not bound to anticipate the remote possibility of the wrongful conduct of a third person and the consequent injury to the plaintiff. (Berner v. Board of Education, 286 N. Y. 174; Kennet v. Sossnitz, 286 N. Y. 623; Ford v. Grand Union Co., 268 N. Y. 243; Lane v. City of Buffalo, 232 App. Div. 334; Levy v. City of New York, 255 App. Div. 857; 280 N. Y. 637; De Salvo v. Stanley-Mark-Strand Corp., 281 N. Y. 333; Bergman v. Feitelowitz, 278 N. Y. 620.) The defendant furnished such supervision as the law requires. (Papow v. Central School District, 277 N. Y. 538; Collentine v. City of New

      York, 279 N. Y. 119; Augustine v. Town of Brant, 249 N. Y. 198; Schneider v. Village of Lake George, 280 N. Y. 507; Fritz v. City of Buffalo, 277 N. Y. 710; Rafsky v. City of New York, 257 App. Div. 855; Smith v. Board of Education, 255 App. Div. 924; Kantor v. City of New York, 251 App. Div. 454; Curcio v. City of New York, 275 N. Y. 20; Thompson v. Board of Education, 280 N. Y. 92; Willcox v. County of Erie, 277 N. Y. 604.)

      Willard M. Pottle for respondents.
    A dangerous condition existed at the scene of the accident by reason of the presence of glass and such condition was the proximate cause of the accident. The city in the exercise of reasonable care should have provided for supervision of children by attendants. (Fritz v. City of Buffalo, 277 N. Y. 710; Garrett v. Bee Line, Inc., 257 App. Div. 981; Schneider v. Village of Lake George, 254 App. Div. 909; 280 N. Y. 507; Parnell v. Holland Furnace Co., 260 N. Y. 604; Burns v. Brooklyn Union Gas Co., 258 App. Div. 348; Connell v. Berland, 223 App. Div. 234; 248 N. Y. 641; Jackson v. London County Council, 28 Times Law Rep. 359; McStravick v. City of Ottawa, 64 Ontario Law Rep. 275; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Popow v. Central School District, 277 N. Y. 538; Smith v. Board of Education, 255 App. Div. 924; Cambas v. City of New York, 285 N. Y. 781; McMahon v. City of Buffalo, 257 App. Div. 916.) The defendant did not furnish such supervision as the circumstances demanded. (Peterson v. City of New York, 267 N. Y. 204; Curcio v. City of New York, 275 N. Y. 20; Collentine v. City of New York, 279 N. Y. 119; Van Dyke v. City of Utica, 203 App. Div. 26; Rafsky v. City of New York, 257 App. Div. 855.)
   Lewis, J.

Riverside Park in the city of Buffalo is owned and maintained by that city for public use. Within the park area of five acres is a variety of recreational facilities including a swimming pool for adults and a wading pool for children. During the morning of July 14, 1940, the infant plaintiff, a child of seven years, accompanied by her brother, aged five, and another companion, aged ten, were wading. There came a time when they left the pool and walked to an adjacent grassy slope to enjoy a sun bath. Meantime a boy of eight years, who had been wading, with them and with whom no altercation had taken place, remained standing near the edge of the pool. As the plaintiff and her companion mounted the grassy slope, the boy, without warning and without cause, picked up several stones and small pieces of glass which he threw in their direction. One of the pieces of glass struck and permanently injured the plaintiff’s eye as she turned to look back.

By the present actions the infant plaintiff — to whom reference will be made as the plaintiff ”— and her father charge the city of Buffalo with legal responsibility for her injuries. Judgments in the plaintiffs’ favor, entered upon a jury’s verdict at Trial Term, have been unanimously affirmed by the Appellate Division. The judgments of affirmance are here on appeal by our permission.

The city is charged with negligence in that, having permitted a concessionaire to sell within the park drinks from bottles which when emptied were thrown upon the ground and broken, the city failed to remove broken glass from the ground and failed properly to supervise children while playing in the park.

The city is not an insurer of the safety of those who make use of its park facilities. The law requires, however, that it shall exercise reasonable care in the maintenance of its parks and in the supervision of their use by the public. (Curcio v. City of New York, 275 N. Y. 20, 23; Peterson v. City of New York, 267 N. Y. 204, 206.)

In the present record there is evidence that refuse, including empty bottles, is discarded by the public about the park and that children at play have been seen to throw such refuse. There is also evidence that bottles thus discarded have in many instances become broken. But there is uncontradicted evidence that on the date of the accident and prior thereto the city employed at Riverside Park porters and laborers whose special duty it was to remove bottles, broken glass, papers, sticks and other common forms of litter strewn by the public about the grass plots and paths within the park. The evidence is not disputed that these porters and laborers, thus assigned, were about their duties eight hours each day, including Sundays, and that several times each day they picked up bottles, broken glass and any refuse which they found in that area near the wading pool where the boy stood when he threw stones and glass toward the plaintiff and her companions. Nor is it disputed that the city employed life guards and attendants who were stationed at and near the swimming and wading pools whose duty it was to supervise the use of those facilities.

The problem, being one of causation, prompts the inquiry whether the record contains any evidence from which the jury could find that the proximate cause of injuries suffered by the plaintiff was a failure by the city to exercise reasonable care either in the maintenance of the park as a public place for recreation or in the supervision of facilities which it afforded for children’s play.

There is no evidence that prior to the accident the plaintiff, her two companions and the boy who threw the glass were quarrelsome; nor is there proof that anything had occurred in their play either in the wading pool or elsewhere from which the most vigilant life guard or attendant could have anticipated the unprovoked conduct of the boy whose sudden and impulsive act brought injury to the plaintiff.

True it is that among missiles picked up by the boy and thrown toward the plaintiff was the piece of thin glass — hardly more than an inch square — which struck the plaintiff’s eye. But that small piece of glass, when on the ground inert, was not inherently dangerous. Had it been permitted to remain there the plaintiff would not have suffered the injury which befell her. She was subjected to no harm from the glass until it was picked up and thrown. Harm came to the plaintiff only after danger was created by the intervention of a third person, a mischievous boy, who on the impulse of the moment • — • of which no prior conduct on his part or by the plaintiff gave warning — picked up stones and glass and threw them toward the plaintiff and her companions.

Upon the record before us we reach the conclusion that there is no evidence from which the jury could find that the proximate cause of plaintiff’s injuries was a failure by the city to exercise reasonable care in the maintenance of the park and the supervision of its recreational facilities. The efficient cause of plaintiff’s injuries was the wrongful act of a third person — an act which, in the circumstances, could not have been foreseen in the exercise by the city of its legal duty toward the plaintiff.

In each action, the judgments should be reversed, and the complaint dismissed, with costs in all courts.

Lehman, Ch. J., Loughran, Finch and Conway, JJ., concur; Rippey and Desmond, JJ., dissent.

Judgments reversed, etc.


author:
Desmond, J.
      Loughran, J.

text:
    1165 Fifth Avenue Corporation, Respondent, v. George W. Alger et al., Appellants.

      Argued January 15, 1942;
    decided April 23, 1942.

      Harold B. Medina and Lewis F. X. Cotignola for appellants.
    The Appellate Division in resolving the controversy against defendants, did so by inferring facts not stipulated, and drawing inferences contrary to the facts as stipulated. These errors are errors of law reviewable in the Court of Appeals. (Marx v. Brogan, 188 N. Y. 431; Cerf v. Diener, 210 N. Y. 156; Bradley v. Crane, 201 N. Y. 14; People v. Hewson, 224 N. Y. 136; Lafrinz v. Whitney, 233 N. Y. 107; Feist v. Fifth Ave. Bank, 280 N. Y. 189; Trimble v. New York Life Ins. Co., 234 App. Div. 427; Brown v. Spohr, 180 N. Y. 201.) The defendants have complied with the conditions prerequisite to a valid assignment of the lease and are entitled to judgment in their favor on the submission made by the parties. (Moran v. Standard Oil Co., 211 N. Y. 187; Gillet v. Bank of America, 160 N. Y. 549; Broadway Realty Co. v. Lawyers Title, Ins. & Tr. Co., 226 N. Y. 335; Wright v. Reusens, 133 N. Y. 298; Rosenthal v. Amer. Bonding Co., 207 N. Y. 162; Gans v. Ӕtna Life Ins. Co., 214 N. Y. 326.)

      George J. Kraft for respondent.
    The trust created by the defendant Alger is not a trust contemplated by the proprietary lease since the trustee has no assets with which to support his assumption of the covenants of the lease other than the lease and the appurtenant stock. (Penthouse Properties, Inc., v. 1158 Fifth Avenue, Inc., 256 App. Div. 685; Tompkins v. Hale, 172 Misc. Rep. 1071; 259 App. Div. 860; 284 N. Y. 107; Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519; Manson v. Curtis, 223 N. Y. 313; Gillet v. Bank of America, 160 N. Y. 549; People ex rel. N. Y. C. & H. R. R. R. Co. v. Walsh, 211 N. Y. 90.)
   Desmond, J.

This controversy was submitted to the Appellate Division, first department, upon an agreed statement of facts.

Plaintiff, a domestic corporation, owns the land and building at 1165 Fifth avenue in the city of New York. These premises are used as a cooperative ” apartment house, in which a person becomes a “ tenant-owner,” entitled to occupy one apartment, by purchasing an appropriate number of shares of plaintiff’s stock and by executing a lease of the particular apartment, for a term of ninety-nine years, which lease requires that the “ tenant-owner ” pay an annual rent of one dollar, plus his proportionate share of the taxes, interest and other expenses of the whole building.

In 1928 defendant George W. Alger became the tenant-owner ” of Apartment 13-C in the building by purchasing 238 shares of plaintiff's capital stock for $26,180, and by signing one of the proprietary leases above described. By that lease he agreed that he would not assign .his rights thereunder without plaintiff’s consent, “ except * * * to a person standing in the relationship of wife, widow, husband, widower, brother, sister, child, grandchild, or parent of the Lessee, or to a Trustee for the benefit of any such person, but not in any case except to an owner of the said shares of the capital stock of the Lessor issued to the Lessee in connection with the allotment of the apartment.” The lease says further on this matter of assignment: No assignment of this lease, in accordance with the provisions hereof, shall become effective unless and until the assignee shall deliver to the Lessor an instrument in writing assuming all the unfulfilled obligations of the assignor, if any, hereunder, and assuming all of the covenants and obligations hereof as though the assignee were the Lessee named herein and had executed this lease. The Lessor may, at its option, withhold its consent to any assignment or transfer of the proprietary lease, or to a subletting of the premises or any part thereof or to the use and occupancy of the premises, until all sums or amounts due and payable by the Lessee to the Lessor by reason of any' of the terms and conditions of this lease have been fully paid to the Lessor. Whenever the holder of any proprietary lease shall, under the provisions thereof, be entitled to assign the same, and shall so assign it and the assignee shall deliver to the Lessor, an instrument in writing assuming all of the unfulfilled obligations of the assignor thereunder, such assignor shall have no further liability on any of the covenants hereof.” In the by-laws of the plaintiff corporation there is similar language as to the transfer of shares of capital stock. All these documents, it is stipulated, were “ prepared and proposed ” by plaintiff.

In 1940 defendant Alger assigned his lease and transferred his stock to defendant Frederick H. Rohlfs, as trustee for the benefit of the settlor’s grandson during the latter’s life or until he should reach the age of twenty-five years, at which time the corpus was to be paid to the grandson; if the grandson died before reaching the age of twenty-five years the corpus was to be paid to the settlor’s granddaughter, or, if she had predeceased the grandson, then to the settlor’s daughter. Into this trust estate went no property except the stock and the lease above mentioned, although the settlor in the deed of trust reserved the right to deposit other securities with the trustee and gave the trustee the power to sell these other securities and apply the proceeds to the maintenance charges of the leasehold premises. The trustee in his written acceptance of trust incurred no personal liability. As trustee, but not individually, he assumed all unfulfilled obligations of the defendant Alger under the lease and all covenants and obligations of the lease, as though he were the lessee named therein. Up to the time of this assignment, defendant Alger had made all the payments required of him.

Plaintiff has not consented to this transfer and assignment and has refused to recognize them, taking the position that, under the terms of the landlord-tenant agreements above described, the transfers so attempted are not such as may be made without plaintiff’s consent.

On these submitted facts the Appellate Division unanimously rendered judgment in favor of the plaintiff, to the effect that the assignment was not authorized by the lease and was, therefore, invalid. The court’s opinion construes the lease, having “ regard to the surrounding circumstances and to the obvious purpose the parties to the contract sought to accomplish,” and holds that it does not permit an assignment to a trustee under the circumstances described in the statement of agreed facts. The court points to these particular circumstances: that the only assets of the trust estate are the stock and the lease, that the trustee does not assume any personal obligation under the lease, and that the trust may end before the lease expires. The opinion says that the lease with about eighty-five years to run is a liability ” and that “ the assignment is an obvious device to shift the assignor’s burdens on the remaining tenants who continue to pay the maintenance charges.” (261 App. Div. 608, 610, 611, 612.) There is nothing at all in the submission concerning the circumstances surrounding the making of the contract or the purpose of the parties thereto, nor is there any statement of the assignor’s motives in making the assignment.

Since the controversy was submitted to the Appellate Division on agreed facts (Civ. Prac. Act, §§ 546-548), the only question for us is, whether the judgment correctly defines the effect of the stated facts as matter of law.” (Feist v. Fifth Avenue Bank, 280 N. Y. 189, 190.)

Under the rules governing the submission of controversies the issue presented must be decided on the stated facts alone. If a decision cannot be made on those stated facts, without drawing inferences of fact or considering facts not submitted, then the submission is incomplete and must be dismissed. (Feist v. Fifth Avenue Bank, supra; Title Guarantee & Trust Co. v. Mortgage Comm., 271 N. Y. 302.) There cannot be any decision on the submission unless the facts therein recited lead necessarily, as matter of law, either to the conclusion urged by one party or to the conclusion urged by the other. If the facts are such that conflicting inferences can be drawn, then the Appellate Division may not draw any such inferences but must dismiss.

The statement of agreed facts above summarized presents only the issues as to whether the assignment of the lease to the trustee for the benefit of the lessee’s grandson is one of those permitted by the terms of the lease to be made without plaintiff’s consent, and if so, whether the lessee is now released from liability under the lease. The language of the lease in this connection neither requires nor permits construction. Its wording is plain, simple, complete and unambiguous. The lease does not say that if it be assigned in trust for one of the designated relatives of the lessee, the trust must contain other assets besides the stock and the lease; nor does the lease say that if it be so assigned the trustee must assume personal liability; nor is there a condition that if the assignment be to a trustee the trust must endure for the unexpired term of the lease. The lease, without condition or qualification, expressly authorizes the lessee to assign it to a trustee for the benefit of his grandson. The parties have here stipulated that a trust for the grandson has in fact been established and so the specified conditions for assignment have been satisfied. Accordingly, on the facts as stated in the submission, this assignment was, as matter of law, one of those authorized by the precise terms of the lease.

Financial responsibility of the assignee is nowhere made a necessary condition. Had the assignment here been made directly to any one of the listed relatives of the lessee, there would be no doubt of its validity, impecunious though that individual assignee might have been. Or, if defendant Alger had made his assignment directly to his grandson of tender years, instead of to a trustee for that grandson, could plaintiff refuse to honor that assignment unless there was submitted with the assignment a showing that the infant was financially responsible? Suppose a proposed assignment runs to a testamentary trustee. Is there to be, in every such case, before the assignment need be given effect, a valuation of the whole of the trust estate of which such a lease becomes a part, to see whether the estate is solvent and able to produce enough income to pay future charges on the cooperative apartment? We find in the terms of the lease no notice or intimation to the investor that in connection with any assignment to a relative or a trustee, the lessee is required to set up some sort of endowment fund to guarantee the payment of his apartment’s share of the building’s upkeep. Accordingly, there should have been judgment, as prayed for by defendants, declaring the trustee defendant entitled to a transfer to him of the stock and to recognition as the new tenant under the lease.

We conclude likewise that defendants, on the stipulated facts, are entitled, as matter of law, to judgment declaring that, on the tender to plaintiff of the assignment and the trustee’s written assumption of liability, defendant Alger was released and discharged of liability under the lease. The last sentence of the excerpt from the lease, above quoted, says flatly that, on compliance with certain conditions, a lessee shall be so released. Defendant Alger has, according to the stipulation, complied with all such conditions, fully. General rules of law concerning the rights and liabilities of the assignor of a lease are not pertinent here. The parties here have agreed in advance that the liability of the original tenant comes to an end when he presents an assignment, of the kind described in the lease, and a written assumption, by the assignee, of all future liability. Indeed, the Appellate Division opinion seems to assume that release of the original lessee’s liability must follow, if it be found that the assignment is of the kind permitted by the lease to be made without plaintiff’s consent. Where the lease says that on assignment to a trustee and assumption by him of liability, the assignor shall be released from liability, surely we cannot add an additional requirement that the trusteeassignee must assume liability, as an individual.

We do not see this as a case where there is any need to go outside the contract itself, and to explore into the surrounding circumstances. If this were such a case and such a contract, the stipulation here would have to be dismissed, since it does not attempt to give us any background picture of the desires and motives of these parties in 1928 or in 1940. (See Matter of City of New York [Vernon Parkway], 285 N. Y. 326, 331.) But the written agreements here presented to us speak for themselves (Title Guarantee & Trust Co. v. Mortgage Comm., supra) and require that judgment enter for defendants.

It follows that the judgment of the Appellate Division should be reversed and judgment directed in favor of the defendants, without costs.

Loughran, J.

(dissenting). The pivotal words of the lease are these: “No assignment of this lease, in accordance with the provisions hereof, shall become effective unless and until the assignee shall deliver to the Lessor an instrument in writing assuming all the unfulfilled obligations of the assignor, if any, hereunder, and assuming all of the covenants and obligations hereof as though the assignee were the Lessee named herein and had executed this lease. * * * Whenever the holder of any proprietary lease shall, under the provisions thereof, be entitled to assign the same, and shall so assign it and the assignee shall deliver to the Lessor, an instrument in writing assuming all of the unfulfilled obligations of the assignor thereunder, such assignor shall have no further liability on any of the covenants hereof.”

I must confess myself unable to see how these words can reasonably be taken to mean that the lessee was discharged of all liability on this lease when his unfulfilled obligations thereunder were “ assumed ” by an assignee “ not individually ” but merely “ as Trustee ” of a trust which has nothing in it but the lease and the appurtenant stock of the corporate lessor. The lessee covenanted to pay the rent and his share of the carrying charges. Nobody pretends that this trustee-assignee can fulfill these obligations in any degree whatever. To say that the lessee was at once let out by this barren trust is to say that his unfulfilled obligations have been wholly unloaded upon his associates in this self-styled “ 100% cooperative plan.” Such a construction, I think, is necessarily excluded by the expressed predominant purpose of the parties. (See Jones on the Construction or Interpretation of Commercial and Trade Contracts, §§ 217-220; Thayer, Preliminary Treatise on Evidence, p. 412; Manson v. Curtis, 223 N. Y. 313, 320; Shirai v. Blum, 239 N. Y. 172, 179; Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519, 524.)

We need not say whether the assignment would have been effective to release the lessee if it had been less radically destructive of his cooperative undertaking.

I think the judgment should be affirmed.

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

Judgment accordingly.


author: Per Curiam.

text:
    In the Matter of The City of New York, Respondent, Relative to Acquiring Title to Land Required for the Purpose of Establishing a Public Beach at Rockaway Beach in the Borough of Queens. Metro Investing and Credit Corporation, as Assignee, Appellant.
    Argued February 26, 1942;
    decided April 23, 1942.

      Leo B. Mittelman, Charles Greenbaum, A. M. Jacobs, Robert C. Poskanzer, A. Joseph Geist and Charles Lamb for appellant.
    An award for consequential damage should have been made. (Matter of Grade Crossing Commissioners, 6 App. Div. 327; Conklin v. N. Y., O. & W. Ry. Co., 102 N. Y. 107; Matter of City of New York

      [Putnam Ave.], 108 Misc. Rep. 427; Matter of City of New York [Northern Boulevard], 281 N. Y. 48; Matter of Jaquino Realty Corp. v. Ormond, 217 App. Div. 76; 247 N. Y. 528; People ex rel. City of New York v. Lyon, 114 App. Div. 583; Town of Fallsburgh v. Silverman, 260 App. Div. 532; 286 N. Y. 594; Matter of Culver Contracting Co. v. Humphrey, 268 N. Y. 26.) The Special Term erred in not giving a full award. (Matter of City of New York [E. 177th St.], 239 N. Y. 119; Matter of City of New York [West 229th St.], 135 Misc. Rep. 710; 235 App. Div. 608; 259 N. Y. 647; Nichols Copper Co. v. Connolly, 208 App. Div. 667; 240 N. Y. 596; Shinnecock Hills & Peconic Bay Realty Co. v. Aldrich, 132 App. Div. 118; 200 N. Y. 533; N. Y. Central & H. R. R. R. Co. v. Village of Ossining, 141 App. Div. 765; 207 N. Y. 648; Matter of Wallace Avenue, 222 N. Y. 139; Johnson v. City of Niagara Falls, 230 N. Y. 77.)

      William C. Chanler, Corporation Counsel (Reuben Levy and Julius Isaacs of counsel), for respondent.
    The damage parcels were by express agreements impressed with servitudes of public passage. The award for these parcels was correct. (People ex rel. Sound Realty Co. v. Nicholson, 277 N. Y. 101; City of Cohoes v. D. & H. Canal Co., 134 N. Y. 397; Smith v. City of Buffalo, 159 N. Y. 427; Tax Lien Co. v. Schultz, 213 N. Y. 9; People ex rel. Poor v. Wells, 139 App. Div. 83; 200 N. Y. 518; Matter of City of New York [Exterior Si.], 285 N. Y. 455; Matter of City of New York [Fourth Ave.], 255 N. Y. 25.) The consequential structural damage to property wholly outside the taking line is attributable solely to the changed grade of the boardwalk in front of the property. The condemnation statute conferred no power on the condemnation court to make an award for such damages. (Matter of Culver Contracting Corp. v. Humphrey, 268 N. Y. 26; Matter of Van Etten v. City of New York, 226 N. Y. 483; Van Aken v. State, 261 N. Y. 360; Sauer v. City of New York, 226 N. Y. 27; 206 U. S. 536; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Transportation Co. v. Chicago, 99 U. S. 635; Matter of City of New York [Northern Blvd.], 281 N. Y. 48; 103 Park Ave. Co. v. Exchange Buffet Corp., 242 N. Y. 366.)
   Per Curiam.

The assignor of appellant was the owner of land at Far Rockaway, Queens county, N. Y., upon which had been erected an amusement park and a boardwalk. Access to the amusement park was had from the boardwalk and from Rockaway boulevard which paralleled the boardwalk at a distance of six hundred feet. In a condemnation proceeding brought pursuant to Laws of 1918, chapter 506, as amended, the city of New York condemned so much of the tract as constituted the land upon which the boardwalk was erected, and title vested in the city to the portion taken on July 15, 1925. Some three years thereafter, pursuant to provisions contained in the same statute, and prior to the hearing at Special Term, the city erected a new boardwalk in the same location as the former one but at a level three feet higher.

It is urged by the city that no damages may be awarded to the claimant under the facts outlined, since we have here merely a change of street grade. The privately owned boardwalk taken was not a street- within the meaning of section 951 of the New York City Charter (L. 1901, ch. 466, as amd.). (Matter of Jaquino Realty Corp. v. Ormond, 247 N. Y. 528, affg. 217 App. Div. 76.) This was an initial acquisition by condemnation. (See Matter of City of New York [Putnam Ave. West], [Finch, J.], 108 Misc. Rep. 427, 431.) The true measure of the damages to which claimant was entitled was the market value of the entire tract and improvements before the taking, less the value of the remainder after the taking, including such damages resulting to the residue as were sustained by reason of the use, permanent in character, to which in this instance the portion taken had already been put by the one acquiring it. (County of Erie v. Fridenberg, 221 N. Y. 389; Town of Fallsburgh v. Silverman, 286 N. Y. 594; South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301; Matter of Culver Contracting Corp. v. Humphrey, 268 N. Y. 26, 36; Matter of Board of Water Supply of City of New York, 277 N. Y. 452, 456; United States v. Grizzard, 219 U. S. 180; Matter of City of New York [Northern Blvd.], 281 N. Y. 48, 53.)

The order of the Appellate Division and the decree of the Special Term should be reversed, with costs in all courts to the appellant, and the matter remitted to the Special Term for disposition in accordance with this opinion.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


author: Finch, J.

text:
    African Metals Corporation et al., Appellants, v. Ralph J. M. Bullowa et al., Respondents, Impleaded with Others.

      Argued March 18, 1942;
    decided April 23, 1942.

      Spencer Pinkham, Henry F. Holthusen and Charles E. Oberle for appellants.
    The appellants are entitled to every favorable inference which may be drawn from the evidence. (Meiselman v. Crown Heights Hospital, Inc., 285 N. Y. 389; McNally v. Phœnix Ins. Co., 137 N. Y. 389.) The appellants proved a prima facie case against the respondents. (Natelson v. A. B. L. Holding Co., 260 N. Y. 233; Meiselman v. Crown Heights Hospital, Inc., 285 N. Y. 389.) Since the trial court found that plaintiffs had proved a prima facie case against the corporate defendant, it erred in dismissing the complaint as to the individual defendants. (Simon v. Lowenthal, 169 Misc. Rep. 718; Wheatley v. Boyce, 165 Misc. Rep. 512.)

      Nathan L. Miller, William A. Marden and James Nevins Hyde for respondents.
    The appellants made their payments in reliance solely on the documents. (Almirall & Co. v. McGlement & Co., 207 App. Div. 320; 239 N. Y. 630.) Having pleaded and proved that the corporation was a principal, and having proceeded to judgment against it as such, appellants cannot recover against the respondents on the same complaint on the ground that the corporation was the respondent’s agent. (Georgi v. Texas Co., 225 N. Y. 410; Canaday Cooler Co. v. Staten Island S. Co., 234 App. Div. 451.) There is no allegation or evidence that the respondents used the corporation as a mere agent or instrumentality to transact their own business or to defraud. (Quaid v. Ratkowsky, 183 App. Div. 428; 224 N. Y. 624; Almirall & Co. v. McClement & Co., 207 App. Div. 320; 239 N. Y. 630; Salvin v. Myles Realty Co., 227 N. Y. 51; Jenkins v. Moyse, 254 N. Y. 319; Berkey v. Third Ave. Ry. Co., 244 N. Y. 84.)
   Finch, J.

This action was tried before a justice and jury against the defendants Ralph J. M. Bullowa, John H. Teeter, Stephen J. Meade and The Meade Steel & Metals Company, Ltd.

At the close of the case of plaintiffs, the court granted motions by the individual defendants to dismiss the complaint as to them and reserved decision on a similar motion by the corporate defendant. The corporate defendant then rested and the court directed verdicts in favor of the several plaintiffs against the corporate defendant. Plaintiffs appealed to the Appellate Division from the judgment entered upon the dismissal of the complaint as to the individual defendants. The corporate defendant did not appeal. The Appellate Division affirmed the judgment in so far as it dismissed the complaint against defendant Bullowa, with the presiding justice and another dissenting; unanimously affirmed the judgment in so far as it dismissed the complaint as against the defendant Teeter; reversed, directed a severance of the action and ordered a new trial as to defendant Meade. Leave was granted by the Appellate Division to appeal to this court from that portion of the judgment in favor of defendant Teeter and plaintiffs have appealed, as of right, to this court from the judgment in so far as it affirmed the dismissal of the complaint as to the defendants Bullowa and Teeter and severed the action. Defendant Meade did not appeal to this court.

The causes of action in the complaint numbered 1, 3' and 5 allege that plaintiffs purchased from defendants five carloads of material. represented to be pure nickel cathodes of which three carloads were purchased by plaintiff African Metals Corporation, and one each by the other two plaintiffs; that plaintiffs paid defendants therefor an aggregate amount of $152,399.50; that when received, the material turned out to be junk consisting of parts of old automobiles and other scrap iron of no value, and that plaintiffs promptly notified defendants thereof, rescinded their respective contracts, offered to return the junk and demanded their money back. The sufficiency of these allegations has been settled, (Seneca Wire & Mfg. Co. v. Leach & Co., 247 N. Y. 1.) The causes of action numbered 2, 4 and 6 contain an additional allegation of scienter. The answers contain mere general denials..

As the complaint was dismissed at the end of the case of plaintiffs, they are entitled upon this appeal to assume the establishment by adequate evidence of every issue upon which they rely concerning which there is some evidence, and the motion to dismiss should not have been granted in the trial court unless upon any issue there can be said to be in support thereof no evidence and no substantial inferences: (Meiselman v. Crown Heights Hospital, 285 N. Y. 389; McNally v. Phoenix Ins. Co., 137 N. Y. 389.)

About a year before the transactions in suit, these three defendants Bullowa, Teeter and Meade, Jiad formed a corporation called The Meade Steel & Metals Company, Ltd. Defendant Bullowa had put up the original capital, through the purchase of an issue of preferred stock of the par value of $5,000, which issue, however, had been retired, and the money of Bullowa returned to him prior to the transactions herein involved. At the time of these transactions not only was the capital of this corporate defendant limited to $75, with 75 shares of common stock of a par value of $1 each, which were equally divided among the threfe defendants, but its bank account, during the three months’ period, showed a balance in February of only $5.69, $19.28 in March and apparently was closed out in April. The total assets of the corporation were $2,110.98, with total liabilities of $1,487.98, and a net worth of $623. The transactions in suit involved more than $150,000 and the corporation possessed no credit facilities. The only reason for setting forth these facts and figures is to show evidence and inferences in connection with the purchase as hereinafter specified.

Defendant Teeter was a partner in a well-known firm of stockbrokers, and had long acted, for defendant Bullowa in connection with his financial matters. Defendant Meade had a background of experience in dealing in scrap metals. It is a fair inference from the facts that the operating arrangement between these individual defendants was that defendant Bullowa would put up the money, defendant Teeter would act as banker in handling, arranging for and disbursing the money, and defendant Meade would negotiate the purchase and sale of the metal. In January, 1936, Bullowa and Teeter sent Meade to Canada, and his expenses were subsequently paid by Teeter with funds furnished by Bullowa, where he negotiated with one Meyer Brenner in Toronto looking toward the purchase, if his testimony is credible, of some pure electrolytic nickel cathodes. These negotiations resulted in an agreement or a sale.

On January 31,1936, defendant Bullowa opened a special account with the stockbrokers, Goadby & Co., by a deposit of $25,000 which, in accordance with his custom, was actually managed by defendant Teeter. This account and every cent in it belonged to defendant Bullowa personally. From this account, as noted, were paid the expenses of Meade in going to and from, and while in Canada.

, A few days after the opening of this “ Bullowa M ” account, and early in February, 1936, defendant Meade approached an officer of appellant African Metals Company, offering to sell some pure electrolytic nickel cathodes of which he produced some samples which he represented came from packing cases which he had seen packed and loaded in a railroad car covered by bills of lading in his possession. On March 5, 1936, Meade wrote a letter in the name of the corporate defendant, making a firm offer to sell to plaintiff African Metals Corporation a car of 63,891 pounds of such nickel cathodes at 44 cents a pound. African Metals made a return offer of 43| cents which on March seventh was accepted by a letter in the name of the corporate defendant, sent by Meade, confirming the sale and enclosing a bill of lading of the Canadian National Railways, issued in the name of one H. Borchers, a stenographer in the employ of the: corporate defendant, accompanied by an invoice, a weight certificate and a certificate of analysis by a Canadian analyst. Each of these documents described the material as 99.50% pure electrolytic nickel cathodes. African Metals delivered to Meade on March seventh its check against these documents in the sum of $27,792.58, to the order of the stenographer, H. Borchers. This check never went into the corporate bank account but was at once endorsed over by Teeter and deposited directly in this personal account of defendant Bullowa marked Bullowa M.” A few days thereafter African Metals purchased two other cars. Meade delivered a similar letter contract and commercial documents, together with an affidavit sworn to by him stating the existence and purity of the nickel cathodes in the cars, and received from African Metals, also to the order of the stenographer, H. Borchers, two checks for $33,231.39 each, or a total of $94,255.36 paid by African Metals Corporation for the three cars. These two checks were also at once endorsed over by Teeter to defendant Bullowa and deposited in the “ Bullowa M account. Meade approached the other two appellants and succeeded in selling them one car each against similar letter contracts and commercial documents. On March twenty-seventh, plaintiff International Selling Corporation delivered its check to Meade to the order of the Meade Steel and Metals Company, Ltd., in the amount of $30,208.79, which was likewise at once endorsed over by Teeter and deposited directly in the Bullowa M ” account. On April first, plaintiff Anglo-American Metal & FerroAlloy Corporation delivered its check to Meade, also drawn to the order of Meade Steel & Metals Company, Ltd., in the sum of $27,935.35, which check likewise was endorsed at once by Teeter and deposited directly in the “ Bullowa M ” account. Defendant Bullowa thus received directly all of the money paid by plaintiffs, while the corporation undertook the obligations. Meade likewise delivered to each of these plaintiffs-appellants sworn affidavits as to the existence in the railroad cars and purity of the nickel cathodes. Defendants arranged to pay Meyer Brenner in Canada the amount of five checks signed by Bullowa on the Bullowa M ” account, in an amount totaling $122,409.79. Thus Meade engineered the purchase in Canada, Teeter managed the bank account and Bullowa furnished the money from this private account, with none of the purchase price of the materials in Canada coming out of the corporate bank account, and none of the moneys paid by plaintiffs ever going into that account. Also, the ordinary operating expense of the corporate defendant, as the expense of the trips of Meade to Canada, were managed by Teeter and paid for by Bullowa out of the Bullowa M ” account. None of the moneys in this account were disbursed for any other purpose than the one connected with this transaction. According to the record there was no note, agreement or writing of any kind between Bullowa or the other individual defendants and the corporate defendant, nor did defendant Bullowa ever have possession or a lien upon any of the commercial documents, and he testified that he did not lend the money to the corporate defendant.” $152,399.50 was paid into the Bullowa M ” account by plaintiffs-appellants. $122,409.79 was paid out to Brenner for the five cars sold. This left a profit to defendant Bullowa on the transactions involved herein of $29,989.71. Immediately upon learning that the material received was junk instead of the pure electrolytic nickel cathodes, as Meade swore he had seen packed and loaded into the cars, plaintiffs-appellants notified all the defendants in writing of their determination to rescind the contracts and each appellant demanded a return of the purchase price paid by it and thereafter brought an action at law as upon an executed rescission demanding judgment for these amounts.

Since the court at Special Term directed a verdict, the question involved is whether the plaintiffs made out a prima facie case, not whether they will be ultimately entitled to judgment when all the evidence is in, i. e., may we say as a matter of law that there is no evidence or inferences from the evidence that these plaintiffs are entitled to recover upon any theory. The Appellate Division has found, upon what seems in this record preponderating evidence, not only that the complaint as against defendant Meade should not have been dismissed at the close of the case of plaintiffs, but that the jury could have found that the causes of action for fraud asserted by each of these plaintiffs were established by the evidence as against defendant Meade and that the plaintiffs may rescind the contracts because of these misrepresentations. Indeed, in the briefs in this court, these respondents do not even urge that Meade was not guilty of intentional fraudulent misrepresentations. Added to these findings of fact by the Appellate Division, there is ample evidence from which a jury could find that Meade, Bullowa and Teeter were joint coadventurers in this enterprise, and were each equally responsible for the acts of the others. (Downey v. Finucane, 205 N. Y. 251.) The law is settled that in an action for rescission in equity, or in an action at law based upon an executed rescission, the principal becomes hable to restore the consideration even though the representations made by the agent are innocent, (Seneca Wire & Mfg. Co. v. Leach & Co., 247 N. Y. 1.) There is substantial evidence, therefore, upon which these plaintiffs may base a ;prima facie case to follow the consideration paid.

Also as plaintiffs have alleged in their causes of action numbered 2, 4 and 6, and the Appellate Division upon ample evidence has found that Meade was guilty of fraudulent misrepresentations, and that the contract could be and was rescinded therefor, and the fact that there is also substantial evidence in this record that Meade, Bullowa and Teeter were joint coadventurers, these plaintiffs have made out a prima facie case in accordance with these causes of action based on scienter. Where there are a number of promoters, all these coadventurers are liable in damages for the fraud of an agent employed by them to effect the sale of the property owned, without reference to the moral guilt or innocence of those not directly involved in the misrepresentations. (Downey v. Finucane, 205 N. Y. 251.) We go no further than to hold that sufficient has been shown to make out a prima facie case on behalf of these plaintiffs on all the causes of action alleged.

Upon the retrial likewise it may be determined whether the individual defendants may not be held as joint adventurers in a common enterprise carried on by them independently of the corporation. While the law permits individuals to incorporate their business and thus escape personal liability, yet such incorporation does not go further than to exempt the individuals from such business as is carried on by the corporation. Incorporation does not exempt the individuals from liability for an enterprise which they themselves choose to carry on as individuals independently of the corporation. It cannot be said, as a matter of law, upon this record, that there is no evidence or inferences from evidence that these defendants were not joint venturers dealing personally in this enterprise. Judge Crouch, writing for the court in Natelson v. A. B. L. Holding Co. (260 N. Y. 233, 238), where the facts were entirely different from the case at bar but the quoted principle very applicable, said: “ It is true that the law permits individuals to incorporate their business as a cover and for the very purpose of escaping personal liability; but the business so incorporated must be carried on by the corporation, not by individuals; and its profits must be available to meet liabilities, before the individuals may share. The corporation exists for the legitimate convenience of the stockholders, not as a mere mask for their personal acts and responsibilities.’ (Halsted v. Globe Indemnity Co., 258 N. Y. 176, 179.) Tested by this broad rule alone, the judgment below, however ingeniously defended, is wrong ” (See, also, Downey v. Finucane, 205 N. Y. 251.)

During the trial the court committed reversible error in excluding the depositions of two Canadian customs officials who testified that they broke the seals of the cars in transit, inspected the contents, and found junk instead of nickel. This error alone would be sufficient to require a new trial.

It follows that the judgment of the Appellate Division should be reversed in so far as it affirmed the judgment in favor of defendants and severed the action, and a new' trial should be granted as to all the individual defendants, with costs to abide the event, and the action severed accordingly. (See 288 N. Y. 673.)

Rippey, Conway and Desmond, JJ., concur; Lehman, Ch. J., Loughran and Lewis, JJ., dissent.

Judgment accordingly.


text:
    Henry Baker et al., Individually and as Administrators of the Estate of Anna Baker, Deceased, et al., Respondents, v. Equitable Life Assurance Society of the United States, Appellant.
    Argued March 9, 1942;
    decided April 23, 1942.

      James D. Ewing, William R. McDermott and Eugene Z. DuBose for appellant.
    The fact that the policy was issued to the insured on July 14, 1920, with a register date of May 1, 1920, and that the first premium paid was $869, did not result in any overcharge of premium or in any failure of consideration and there was no illegal discrimination. (Metzger v. Ætna Ins. Co., 227 N. Y. 411; Whipple v. Prudential Ins. Co., 222 N. Y. 39; Goldstein v. New York Life Ins. Co., 176 App. Div. 813; 227 N. Y. 575; Corning v. Prudential Ins. Co., 248 App. Div. 187; 273 N. Y. 668; Prudential Ins. Co. v. Snyder, 142 Misc. Rep. 150; 229. App. Div. 852; Bollard v. New York Life Ins. Co., 98 Misc. Rep. 286; 182 App. Div. 915; 228 N. Y. 521; Knight v. Kitchin, 237 App. Div. 506; McGee v. Felter, 75 Misc. Rep. 349; 154 App. Div. 957; 214 N. Y. 683; Mutual Ins. Co. v. Hurni Packing Co., 263 U. S. 167; Potash v. Prudential Ins. Co., 248 App. Div. 874.) In determining the net cash surrender value of the policy as of November 1, 1934, the date of its lapse, the defendant had the right to include in the outstanding indebtedness against the policy interest at the rate of six per cent per annum for the period from May 1, 1934, to November 1, 1934. (Holland v. John Hancock Mut. Life Ins. Co., 279 N. Y. 218; Rhine v. New York Life Ins. Co., 248 App. Div. 120; 273 N. Y. 1; Taylor v. New York Life Ins. Co., 197 N. Y. 324; Reynolds v. Northwestern Mut. Life Ins. Co., 10 N. E. Rep. [2d] 70; Equitable Life Assur. Society v. Brandt, 198 So. Rep. 595; Kovacs v. John Hancock Mut. Life Ins. Co., 193 Atl. Rep. 529.) The cash surrender value of the policy as of November 1, 1934, the date of its lapse, was properly reduced by the principal of the-advance of December 1, 1933, plus interest accrued from May 1,1934, to November 1,1934; there was no payment of compound interest; even if the insured had paid compound interest, the cash surrender value was, nevertheless, properly reduced. (Mills v. Equitable Life Assur. Soc., 262 App. Div. 907; Bryan v. New York Life Ins. Co., 262 App. Div. 896; Marvine v. Hymers, 12 N. Y. 223; Bloomer v. McInerney, 30 Hun, 201; International Bank v. Bradley, 19 N. Y. 245;. Willingham v. Equitable Life Assur. Soc., 86 Fed. Rep. [2d] 72; Young v. Hill, 67 N. Y. 162; Ritter v. Phillips, 53 N. Y. 586; Burne v. Van Raalte Co., 202 App. Div. 189; Wilcox v. Van Voorhis, 58 Hun, 575; Brennan v. Nat. Equitable Investment Co., 247 N. Y. 486; Pollitz v. Wabash R. R. Co., 207 N. Y. 113.) No post-mortem dividend was allowable under the policy and' even if such a dividend should have been allowed it would not have been available either to increase the cash surrender value of the policy as of the date of lapse or as a credit against the indebtedness existing at the date of lapse. (Manufacturers Trust Co. v. Equitable Life Assur. Soc., 244 App. Div. 357; Williams v. Union Central Life Ins. Co., 291 U. S. 170; State Life Ins. Co. v. McNeese, 19 N. E. Rep. [2d] 854; Massachusetts Mut. Life Ins. Co. v. Jones, 44 Fed. Rep. [2d] 540.)

      Alfred B. Nathan, A. J. Asche and Herbert Spencer Leman for respondents.
    By antedating the policy to May 1, 1920, the company charged and received from the insured a premium for two and one-half months’ insurance, without giving the insured any insurance protection whatever for said period. This resulted in a loss to the insured and a corresponding gain to the company in the sum of $197.60, which has never been credited to the insured’s account, and which is sufficient to warrant recovery. (Fogg v. Morris Plan Ins. Soc., 115 Misc. Rep. 491; Pink v. Title Guarantee & Trust Co., 274 N. Y. 167; Flandrow v. Hammond, 148 N. Y. 129; American Surety Co. v. Connor, 251 N. Y. 1; Roberts v. Ely, 113 N. Y. 128; Lichtenstein v. Grossman Constr. Co., 248 N. Y. 390; Strauss v. Union Central Life Ins. Co., 170 N. Y. 349; Edelson v. Metropolitan Life Ins. Co., 95 Misc. Rep. 218; Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Long Beach Trust Co. v. Warshaw, 264 N. Y. 331.) Defendant’s inclusion in the indebtedness of interest as of November 1, 1934, was wrongful. (New York Life Ins. Co. v. Shivley, 188 Ark. 1044; Roeser v. National Life Ins. Co., 115 Pa. Super. Ct. 409; Matter of State Bank of Canastota [Russell], 238 App. Div. 39; 263 N. Y. 571; Keller v. Strasburger, 90 N. Y. 379; Matter of Crane v. Craig, 230 N. Y. 452; Taylor v. U. S. Casualty Co., 269 N. Y. 360; Schweinburg v. Altman, 145 App. Div. 377; 207 N. Y. 681; Italian Benevolent Institute v. Elaine Co., 240 App. Div. 196; Mansbacher v. Prudential Ins. Co., 273 N. Y. 140; Mabie v. Fuller, 255 N. Y. 194; Matter of Terry, 218 N. Y. 218; Metzger v. Ætna Ins. Co., 229 App. Div. 2; Weed v. Spears, 193 N. Y. 289.) The company’s statement of the indebtedness as of November 1,1934, is incorrect because it includes compound interest which the company was not entitled to charge either under the policy provisions or under the Insurance Law (Cons. Laws, ch. 28). (Sonn View Development Corp. v. Xnorb Realty Corp., 254 App. Div. 319; Matter of Ellis, 176 App. Div. 425; Matter of Radner, 36 Fed. Supp. 964; Young v. Hill, 67 N. Y. 162; Newburger-Morris Co. v. Talcott, 172 App. Div. 485; 219 N. Y. 505; Stauffer v. Northwestern Ins. Co., 51 Pac. Rep. [2d] 390; Mabie v. Fuller, 255 N. Y. 194; Strauss v. Union Central Life Ins. Co., 170 N. Y. 349.) The cash surrender value of the policy should have been increased by a post mortem dividend. (Rhine v. New York Life Ins. Co., 248 App. Div. 120; 273 N. Y. 1; Wells v. Metropolitan Life Ins. Co., 171 Misc. Rep. 878; 258 App. Div. 986;
      Steiner v. Equitable Life Assur. Soc., 146 Misc. Rep. 292; Miller v. Continental Casualty Co., 261 App. Div. 395; Kocak v. Metropolitan Life Ins. Co., 144 Misc. Rep. 422; 237 App. Div. 780; 263 N. Y. 518; United States Life Ins. Co. v. Spinks, 126 Ky. 405; 209 U. S. 359; Harvey v. Union Central Life Ins. Co., 45 Fed. Rep. [2d] 78; 283 U. S. 829.)
   Per Curiam.

On. the stipulated facts there is no basis for holding that the insurance policy was in effect when Hyman D. Baker died. The right of the insured, after default in premium payment, to elect one of the options described in the policy, did not pass to his beneficiaries at his death. (Lange v. Metropolitan Life Ins. Co., 278 N. Y. 626.) Mere proof that the policy bore a date two months earlier than its actual date of issue, and that insured paid premiums for that two-month period, did not establish such discrimination as was prohibited by section 89 of the Insurance Law (Cons. Laws, ch. 28) as it stood in 1920. We do not decide what effect such discrimination, if established, would have on the rights of beneficiaries. As to interest on policy loans, defendant properly charged against the policy’s surrender value, interest to the date of premium default, even though that date was prior to the date when annual interest became due when insured was not in default as to premiums. Proof of the payment of compound interest on these policy loans, whether or not justified by the terms of the policy, does not entitle the beneficiaries to a credit, since the insured knew that the interest was being compounded, and failed to object thereto. (Young v. Hill, 67 N. Y. 162, 167.) No post mortem dividend was due on this policy since the policy was not in effect when insured died.

The judgments should be reversed and judgment directed in favor of the defendant, dismissing the complaint, with costs in all courts.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.,

Judgments reversed, etc.;


text:
    Mildred English et al., Respondents, v. Merroads Realty Corporation, Appellant, Impleaded with Others.
    Submitted March 9, 1942;
    decided April 23, 1942.

      Robert H. Charlton for appellant.
    There is a complete absence of proof that the defendant was guilty of negligence which was the proximate cause of the fire and an utter lack of evidence from which any negligence on the part of the defendant could be reasonably inferred. (Hyman v. Barrett, 224 N. Y. 436.)

      Alexander U. Zinke and Charles W. Silver for respondents.
    It was for the jury to determine on all the facts and circumstances and the inferences therefrom, whether appellant landlord was negligent and whether it exercised reasonable care and supervision in its control and operation of the heating apparatus and of the cellar at its premises. (Sciolaro v. Asch, 198 N. Y. 77; Paltey v. Egan, 200 N. Y. 83; O’Rourke v. Feist, 42 App. Div. 136; Russo v. Watson, 249 App. Div. 782; Stott v. Churchill, 15 Misc. Rep. 80; 157 N. Y. 692; Gregory v. Memorial Hospital, 239 App. Div. 857; Rosen v. Prudent Estates, Inc., 255 App. Div. 858; Dillon v. Rockaway Beach Hospital, 284 N. Y. 176; Jenkins v. 313-321 W. 37th St. Corp., 284 N. Y. 397; Donohue v. Erie County Savings Bank, 285 N. Y. 24; Kessler v. The Ansonia, 253 N. Y. 453; Allen v. Stokes, 260 App. Div. 600.) The landlord could not delegate its duties of furnishing heat to respondents and of exercising reasonable care that the heating plant and cellar operated by it and under its control were not in dangerous condition. Hence, it was liable, in any event, not only for its own negligence, but also for that of persons performing such non-delegable duties. (Sciolaro v. Asch, 198 N. Y. 77; Paltey v. Egan, 200 N. Y. 83; Kirby v. Newman,
      239 N. Y. 470; Tallman v. Murphy, 120 N. Y. 345; O’Rourke v. Feist, 42 App. Div. 136; Russo v. Watson, 249 App. Div. 782; Stott v. Churchill, 15 Misc. Rep. 80; 157 N. Y. 692; Eisenberg v. Kemp, Inc., 256 App. Div. 698; Bryant v. Carr, 52 Misc. Rep. 155.)
   Per Curiam.

There was no breach by the defendant landlord of its obligation to heat the apartment it let to the plaintiffs. There was no failure of its duty to maintain its heating apparatus with reasonable care. The oil burner did not become unsafe because a contractor was filling the oil tank. There was no reason why the defendant landlord should have expected that the workmen engaged in that ordinary task would spill oil on the cellar floor in quantity sufficient to reach the oil burner. Such a danger was not inherent in the work of filling the tank and the defendant landlord had no notice thereof.

The judgments should be reversed and a new trial granted, with costs in all courts to abide the event. (See Hyman v. Barrett, 224 N. Y. 436.)

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Abraham M. Ditchik, Appellant.
    Argued March 3, 1942;
    decided April 23, 1942.

      Jacob Shientag for appellant.
    There was no proof of an attempt to commit the crime of bribery, and the submission to the jury of the attempted bribery counts and the court’s erroneous charge thereon constitute reversible error. There was no corroboration of the testimony given by conceded accomplices as required by section 399 of the Code of Criminal Procedure. (People v. Collins, 234 N. Y. 355; People v. Mills, 178 N. Y. 274; People v. Sullivan, 173 N. Y. 122; People v. Werblow, 241 N. Y. 55; People v. Rizzo, 246 N. Y. 334; Hyde v. United States, 225 U. S. 347; People v. Malone, 205 App. Div. 257; People v. O’Farrell, 175 N. Y. 323.)

      John J. Bennett, Jr., Attorney-General (William J. Butler and John Harlan Amen of counsel), for respondent.
    Defendant was properly convicted of attempted bribery. (People v. Duffy, 160 App. Div. 385; 212 N. Y. 57; People v. Bennett, 182 App. Div. 871; 224 N. Y. 594; People v. Sullivan, 173 N. Y. 122; People v. McKane, 143 N. Y. 455; People v. Luciano, 277 N. Y. 348; People v. Warner, 152 Misc. Rep. 607 ; 244 App. Div. 833; 269 N. Y. 597; People v. Moran, 123 N. Y. 254; People v. Duffy, 212 N. Y. 57; Matter of Herschman, 233 App. Div. 884; People v. Hines, 284 N. Y. 93; People v. Jaehne, 103 N. Y. 182; People v. McGloin, 91 N. Y. 241; Gebardi v. United States, 287 U. S. 112; People v. Dunbar Contracting Co., 165 App. Div. 59; 215 N. Y. 416.)
   Per Curiam.

Our modification of the judgment of conviction requires the reversal of so much of the judgment as convicts the defendant, under count two of the indictment, of an attempt to commit the crime of bribery. (Penal Law, §§ 2, 378.) Acts in furtherance of a criminal project do not reach the stage of an attempt unless they carry the project forward within dangerous proximity to the criminal end to be attained.” (People v. Werblow, 241 N. Y. 55, 61, 62; People v. Collins, 234 N. Y. 355, 359, 360.) In an effort to establish the defendant’s guilt under count two the prosecution introduced testimony by three witnesses, each of whom was thereafter ruled by the trial justice to be an accomplice as a matter of law. We conclude that the testimony of the three witnesses mentioned above, when considered with the remaining evidence of record in the case, is not sufficient in law to warrant the conviction of the defendant under count two of the indictment. (Code Grim. Proc. §§ 395, 399.)

The judgment of the Appellate Division in so far as it affirms the judgment of the trial court convicting the defendant of an attempt to commit bribery (count two) should be reversed and a new trial ordered as to that count; otherwise the judgment should be affirmed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur!

Judgment accordingly.


author: Lehman, Ch. J.

text:
    In the Matter of Frank J. Rohr, Appellant and Respondent, against Edwin B. Kenngott, as Clerk of the County of Erie, et al., Respondents and Appellants.

      Argued February 25, 1942;
    decided April 23, 1942.

      William Brennan, Jr., for petitioner, appellant and respondent.
    The apparent reservation in subdivision 2 of section 22 of the Civil Service Law (Cons. Laws, ch. 7) prior to its amendment by chapter 853 of the Laws of 1941, did not deprive cashiers in the competitive class of the civil service of the protection afforded by section 25 of such law. (People ex rel. Sommerville v. Williams, 217 N. Y. 40; Matter of Merriweather v. Roberts, 268 N. Y. 12.) The apparent reservation and exclusion of cashiers under subdivision 2 of section 22 of the statute as that subdivision was worded prior to its amendment in 1941, did not apply to or affect a civil service employee in the competitive class whose position is not that of a mere cashier, or one who holds a position, the duties of which are not defined by statute as those of a mere cashier. (Matter of Byrnes v. Windels, 265 N. Y. 403; People ex rel. Ryan v. Wells, 178 N. Y. 135; People ex rel. Hoefle v. Cahill, 188 N. Y. 489; People ex rel. Corkhill v. McAdoo, 98 App. Div. 312; Matter of Petrillo v. Lynn, 243 App. Div. 796; 268 N. Y. 673.) To withhold from the position held by the petitioner, after it was classified as competitive, all protection against removal would, in effect, make it an exempt one in contravention of the Constitution and the statute. (Matter of Seeley v. Stevens, 190 N. Y. 158; Matter of Wipfler v. Klebes, 284 N. Y. 248.) A classification made by the State Civil Service Commission will not be disturbed if there is reasonable ground to sustain it. (People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Simons v. McGuire, 204 N. Y. 253; Matter of Rooney v. Rice, 274 N. Y. 347; Opinion of Attorney-General, 5 State Dept. Rep. 554; Matter of Farley v. Kraft, 204 N. Y. 675; People ex rel. Weaver v. Farley, 147 App. Div. 420.)

      Elmer R. Weil and Paul J. Batt for Edwin B. Kenngott, as Clerk of the County of Erie, respondent and appellant.
    The duties of a cashier employed by the County Clerk to collect mortgage tax moneys involve complete confidence and trust rather than the mere performance of routine clerical work. (Chittenden v. Wurster, 152 N. Y. 345; Matter of Gilfillan, 127 App. Div. 846.) The County Clerk had full authority to discharge petitioner under section 22 of the Civil Service Law. (Matter of Glassman v. Fries, 271 N. Y. 116; Matter of Mylod v. Graves, 274 N. Y. 381; Matter of Petrillo v. Lynn, 243 App. Div. 796; 245 App. Div. 740; 268 N. Y. 673; People ex rel. Hoefle v. Cahill, 188 N. Y. 489.) Section 25 of the Civil Service Law has no application. (People ex rel. Garvey v. Prendergast, 148 App. Div. 129; Matter of Merriweather v. Roberts, 268 N. Y. 12.)

      John J. Bennett, Jr., Attorney-General (James P. Cotter of counsel), for Civil Service Commission of the State of New York, respondent and appellant.
    The change of classification of the position of cashier to competitive from exempt was legal. (People ex rel. Shau v. McWilliams, 185 N. Y. 92; Matter of Blatz v. Esser, 189 App. Div. 763; Matter of Simons v. McGuire, 204 N. Y. 253; Matter of Rooney v. Rice, 274 N. Y. 347; Matter of Farley, 73 Misc. Rep. 555; Matter of Farley v. Kraft, 147 App. Div. 929; 204 N. Y. 675.) When petitioner’s position was classified as competitive, he retained the position. (Matter of Sugden v. Partridge, 174 N. Y. 87; Matter of Jampol v. Kern, 167 Misc. Rep. 823; 280 N. Y. 659; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Fornara v. Schroeder, 261 N. Y. 363.) The holder of a competitive position cannot be discharged for political reasons. (People ex rel. Somerville v. Williams, 217 N. Y. 40; People ex rel. Garvey v. Prendergast, 132 N. Y. Supp. 115; Matter of Merriweather v. Roberts, 268 N. Y. 12.) Petitioner could not be removed except for charges or reasons stated in writing. (Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of Friedman v. Finegan, 268 N. Y. 93; Neary v. O’Connor, 18 N. Y. Supp. 634; Matter of Willard v. Pilcher, 92 Misc. Rep. 30; Matter of Petrillo v. Lynn, 243 App. Div. 796; 268 N. Y. 673.)
   Lehman, Ch. J.

The petitioner, Prank J. Rohr, was appointed in 1937 by the County Clerk of Erie county to a position in the Mortgage Tax Bureau of the County Clerk’s office. It is the duty of the County Clerk of Erie county, pursuant to the provisions of the Tax Law (Cons. Laws, ch. 60), to collect the recording tax on mortgages. Section 261 of the Tax Law provides that upon the first day of each month he must pay over to the County Treasurer all moneys received during the preceding month upon account of taxes paid to him “ after deducting the necessary expenses of his office as provided in section two hundred and sixty-two.” Section 262 provides that recording officers and county treasurers shall severally be entitled to receive all their necessary expenses for the purposes of this article, including printing, hire of clerks and assistants, being first approved and allowed by the tax commission and [which] shall be retained by them out of the moneys coming into their hands.” The position to which the petitioner was appointed is entitled cashier ” and at the time of his appointment was classified as an “ exempt ” position. Upon the petition of the "County Clerk, in August, 1939, by order of the State Civil Service Commission, with the approval of the Governor, the position was reclassified and placed in the competitive ” class. At the election held in November, 1939, a new County Clerk was elected. He took office on January 1, 1940. He promptly delivered to the petitioner a notice in which he stated that the reclassification of the petitioner’s position in the competitive class by the State Civil Service Commission is, as I am informed, illegal. It is not my intention to continue you in the position and you are accordingly notified that you need not present yourself for duty at the Erie County Clerk’s office at any time subsequent to the delivery of this letter.”

The petitioner claims the protection afforded by section 22 of' the Civil Service Law (Cons. Laws, ch. 7) to any “ employee holding a position in the competitive class of the civil service of the state, or any civil division or city thereof.” He has not received notice that any charges have been preferred against him. In his petition he alleges that the new County Clerk informed him in effect that he had no complaint of the manner in which the petitioner had performed his duties, but that political considerations based on difference of party allegiance compelled him to remove the petitioner. The petitioner has brought a proceeding under the provisions of article 78 of the Civil Practice Act to compel the County Clerk to reinstate him. Upon the application of the County Clerk the members of the State Civil Service Commission were made parties to the proceeding and the County Clerk moved the court to direct the Commission to reclassify the petitioner’s position from the competitive to the exempt class. The court at Special Term dismissed the petitioner’s application for an order compelling his reinstatement and denied the motion of the County Clerk for an order compelling the State Civil Service Commission to reclassify petitioner’s position. The order of Special Term was affirmed by the Appellate Division — unanimously in so far as it denied the application of the County Clerk to compel the State Civil Service Commission to reclassify the position which the petitioner had held, and by a divided vote in so far as it dismissed the petitioner’s application for an order directing his reinstatement.

Though the title of “ cashier ” has been attached to the position occupied by the petitioner, the duties of the holder of the position are not confined to the handling of moneys. The County Clerk alleges that the cashier " is entrusted with the handling of monies received during the course of the day and further entrusted with the explicit duty of preparing deposit slips and depositing such sums in the bank,” but it is not disputed that at least one other employee holding a position in the Mortgage Tax Bureau, which is entitled “ examiner ” and which is in the competitive class, shares these duties with the petitioner and, like the petitioner, receives and makes deposits of money and has access to the office safe; and it is also not disputed that in the course of the performance of his duties the petitioner has been required to examine all papers and documents filed or recorded in the office of the County Clerk of Erie county for the purpose of determining whether or not any of such papers or documents disclose any interest, or lien, subject to the payment of a mortgage tax to the State of New York or under which a mortgage tax may be collected pursuant to the provisions of the Tax Law of said state.” Though the County Clerk is responsible for the collection of the recording tax and may retain out of the moneys collected the necessary expenses of collection including the hire of clerks and assistants, the persons appointed to positions in his office are not his employees but are in the service of the State, are paid out of the moneys of the State and hold positions of trust in the civil service ” of the State as defined in section 2 of the Civil Service Law.

Appointments,, promotions and removals of such employees are subject to the provisions of the Civil Service Law. Such positions must be classified in the competitive class unless they are placed in the exempt class in accordance with section 13 of the Civil Service Law upon a finding by the Civil Service Commission that a competitive examination is not practicable. The Civil Service Commission has determined that such an examination is practicable. Upon this record there might perhaps be doubt whether the Civil Service Commission could reasonably find that a competitive examination would not be practicable. Certainly the court cannot say that the finding of the Civil Service Commission that a competitive examination is practicable is arbitrary. Upon the transfer of the position occupied by the petitioner to the competitive class, the petitioner became entitled to the same security of tenure he would have had if he had been appointed after competitive examination. (Matter of Fornara v. Schroeder, 261 N. Y. 363.)

The courts below have so held, but at the same time they have held that the Civil Service Law does not afford to a person holding the position of cashier even in the competitive class any substantial right to tenure of his position. Though the power to remove from positions in the civil service is limited by section 22 and though it is provided in subdivision 2 of that section that no employee “ holding a position in the competitive class * * * shall be removed except for reasons stated in writing, * * * and shall be allowed a reasonable time for answering the same in writing,” yet the same subdivision also provides that “nothing in this section shall be construed to apply to the position of private secretary, cashier or deputy of any official or department or change the provisions of section thirteen of the civil service law.” If that section is construed according to its letter, then no person may be appointed to the position of cashier without a competitive examination where such examination is practicable, yet the person so appointed is not entitled to the security of tenure assured to other holders of competitive positions under the provisions of section 22.

The petitioner claims that removal is illegal not only because no charges had been made against him but because his removal has been “ affected or influenced ” by his “ political opinions or affiliations,” in violation of section 25 of the Civil Service Law. There is no provision in that section which in terms limits its application to persons in the competitive class or which withdraws from its scope the position of cashier. In Matter of Merriweather v. Roberts (268 N. Y. 12) this court concluded that a provision excluding positions in the exempt class from the scope of the provisions of section 25 must be read into the statute by necessary implication in order to carry out the general purpose of the Civil Service Law. The courts below have held that the holder of the position of cashier, though that position had been placed in the competitive class, is not entitled to security of tenure assured to holders of other competitive positions and that the decision of this court in the Merriweather case compels the conclusion that he is also not entitled to the protection provided by section 25. That, in our opinion, does not follow. On the contrary, the finding by the Civil Service Commission that a competitive examination is a practicable test of fitness for the position of cashier and that in the future no appointment may be made without such examination destroys the basis for any claim that the Merriweather case and this case are analogous.

True, a statutory prohibition against removal of the petitioner because of party affiliation would probably afford very unsubstantial protection, if he may be removed though no charges have been made against him and without any statement of the reasons for his discharge. Perhaps it would be unreasonable to ascribe to the Legislature an intention to create such an anomalous situation, but it would be at least equally unreasonable to ascribe to the Legislature an intention to permit the removal of a person holding a position in the competitive class without charges and without reason given for his removal. Yet, as we have said, if section 22 of the Civil Service Law is given literal construction, that is exactly what the Legislature has done in respect to the position of cashier. The history of section 22 lends strong force to the argument that the draftsman of the section has distorted the intention of the Legislature.

To set forth in detail the history of the provisions of section 22 would unduly extend this opinion. In its present form subdivision 1 refers to removal of veterans and volunteer firemen; subdivision 2 refers to removals generally. In their original form these provisions were combined in a single section without subdivision. Then, as now, the provision in regard to the position of private secretary, cashier or deputy ” came at the end of the section. In 1915, while the statute was in that form, the Attorney-General rendered an opinion in which he said, The exception of deputies, cashiers, and secretaries from the operation of section 22 of the Civil Service Law only means that the Legislature thought it wise to leave those positions out, when favoring veterans, etcetera, in the civil service, and cannot be used as a reasonable argument that cashiers are intended by the Legislature to be placed in the exempt class.” (5 State Dept. Rep. 554, 581.) When the limitations upon the power of removal were reformulated and placed in two. subdivisions the clause excepting deputies, cashiers and secretaries from the operation of section 22 could reasonably have been made part of subdivision 1, but it remained in the same position in which it had been originally placed, that is at the end of the section. The Legislature, by chapter 853 of the Laws of 1941, has now removed it from subdivision 2 and placed it in subdivision 1. In the future, there can be no doubt that the position of cashier is excluded only from the operation of the provisions of subdivision 1 of section 22 granting special rights of tenure to veterans, and is not excepted from the operation of subdivision 2. We need not decide whether in this case without such amendment the statute could be so construed, for in any event the position under the title of cashier ” which the petitioner occupied is not a position of cashier ” within the meaning of the statute. The Legislature did not intend that rights of tenure to a position should be determined by the name given to the position. The duties of the position, as defined by some statute or by an ordinance or resolution of a body duly authorized by statute, not its name, determine the status of the position. Here, the duties of the position to which the petitioner was appointed are not limited in manner which would bring the position within the excepted class. (Matter of Byrnes v. Windels, 265 N. Y. 403; People ex rel. Hoefle v. Cahill, 188 N. Y. 489.)

The order should be modified to the extent that the petitioner’s application for an order directing his reinstatement is granted and as so modified affirmed, with costs to the petitioner-appellant in all courts against the County Clerk of Erie county.

Loughran, Finch, Rippey, Lewis and Conway, JJ., concur; Desmond, J., taking no part.

Ordered accordingly.