author: Conway, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Daniel Wirtschafter, Principal. National Surety Corporation, Surety, Appellant.
    Argued April 22, 1953;
    decided July 14, 1953.

      Edwin M. Otterbourg, Aaron Rosen, Frederic P. Houston and James C. Slaughter for appellant.
    I. The bail bond accepted by the court for the release of the twice-convicted felon was void and is unenforcible. (Shaw v. Tobias, 3 N. Y. 188; People ex rel. Gagliano v. Warden of City Prison, 188 Misc. 800; People ex rel. McManus v. Warden of City Prison, 226 App. Div. 364; People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393; People ex rel. Bernoff v. Kirby, 265 App. Div. 961; People v. Gould, 169 Misc. 323; Winter v. Kinney, 1 N. Y. 365; Decker v. Judson, 16 N. Y. 439.) II. The District Attorney may not proceed against the surety five and one-half years after the original forfeiture. (People v. Bennett, 136 N. Y. 482, 137 N. Y. 601; People v. Continental Cas. Co., 200 Misc. 546, 279 App. Div. 654.)

      T. Vincent Quinn, District Attorney (Benjamin J. Jacobson and George H. Zator of counsel), for respondent.
    I. Upon issuance to defendant of a certificate of reasonable doubt it was discretionary with the Chief Judge of the Court of Appeals either to deny or to admit defendant to bail and to fix the amount thereof. (People ex rel. Hummel v. Reardon, 186 N. Y. 164; People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393.) II. Section 595 of the Code of Criminal Procedure is neither mandatory nor a statute of limitation; rather it is permissive in its application. (People v. Bennett, 136 N. Y. 482, 137 N. Y. 601.) III. The bail bond in question is a completely executed contract for which appellant received full consideration. (Svenska T. F. Aktiebolaget v. Bankers Trust Co., 268 N. Y. 73; Hathaway v. Payne, 34 N. Y. 92; Schoenholz v. New York Life Ins. Co., 234 N. Y. 24; Welland Canal Co. v. Hathaway, 8 Wend. 480; Frost v. Saratoga Mut. Ins. Co., 5 Denio 154; Brown v. Bowen, 30 N. Y. 519; New York Rubber Co. v. Rothery, 107 N. Y. 310; Rothschild v. Title Guar, & Trust Co., 204 N. Y. 458.) IV. Appellant’s application is neither timely nor is appellant the real party in interest. (Matter of Peerless Cas. Co. v. McGoldrick, 264 App. Div. 179; People v. Chapman, 220 App. Div. 781; People v. Friedman, 220 App. Div. 782; People v. Carlino, 179 Misc. 296; People v. Brenner, 167 Misc. 555.)
   Conway, J.

In October, 1943, Daniel Wirtschafter was indicted by a grand jury in the County Court of the County of Queens. The indictment charged him, as a second offender, with the crime of grand larceny in the first and second degrees and burglary in the third degree. He had previously and on May 13, 1937, pleaded guilty to an indictment in New York County charging him with the crime of burglary in the third degree and was sentenced to a term of imprisonment of from two and one half to five years. On November 23, 1943, Wirtschafter was convicted of the second offense, as charged, and on December 3, 1943, was sentenced to imprisonment in Sing Sing Prison under an indeterminate sentence of from seven and one half to fifteen years. An appeal was taken to the Appellate Division which court modified the judgment of the County Court (1) by setting aside the verdict of guilty of the commission of the crime of grand larceny in the second degree, and (2) by dismissing the fourth count in the indictment which charged that crime. The judgment- of conviction was, in all other respects, affirmed. (People v. Wirtschafter, 268 App. Div. 993.) In January, 1945, a certificate of reasonable doubt was granted Wirtschafter so that he might take a further appeal to this court. The certificate contained a direction that he be , admitted to bail in the sum of $5,000. Such bond was furnished by National Surety Corporation. We affirmed the decision of the Appellate Division on May 24,1945. (294 N. Y. 832.)

The defendant failed to appear and on July 18, 1945, a bench warrant was issued by a County Court Judge for his apprehension. The clerk’s order book bears the notation in part: “ Bench warrant for execution of Judgment.” A forfeiture of the bond was, at that time, entered and indorsed on the back of the indictment in the following language:

July 18, 1945 Bond forfeited.
July 18, 1945 Bench Warrant Issued.”

A similar entry appears upon the face of the bond itself, and was apparently made at a later time in order to complete the record of the forfeiture. No action was taken upon the forfeiture for five and one-half years until February 1, 1951, when the District Attorney obtained from a County Court Judge an ex parte order again purporting to forfeit the bond and authorizing the entry of judgment thereon, pursuant to the provisions of section 595 of the Code of Criminal Procedure. This second order of forfeiture is silent as to. the previous forfeiture in 1945. Judgment in the sum of $5,000 was entered upon the second order on February 6, 1951.

By order to show cause, National Surety moved, on February 19,1951, for an order: (1) vacating the judgment of February 6th; (2) declaring the bond null and void, and (3) for such other and further relief as might be just and proper upon the ground that the granting of bail to defendant after his conviction as a second felony offender was without authority of law. The motion, made at a Trial Term of the County Court of Queens, was-denied by the County Court Judge. The Appellate Division, Second Department, unanimously affirmed, writing an opinion wherein it indicated that it considered the application as one for remission of forfeiture and that since the motion had not been made within a year after the forfeiture .it was untimely, under the provisions of section 598 of the Code of Criminal Procedure.

It was error for the Appellate Division to treat this motion to vacate as an application for remission under section 598 of the code and subject to the time limitation therein contained. An application for remission is addressed to the discretion of the court (People v. Parkin, 263 N. Y. 428, 431-432; People v. Cohen, 245 N. Y. 419, 421), and is conditioned upon the payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture. (Code Grim. Pro., § 598.) National Surety’s motion is a direct challenge to the right of the court to enforce the forfeiture of a void bond. By such motion National Surety seeks to invoke the inherent power, possessed by a court, to declare null and void an act performed by it which was done without authority of law and which it was beyond its power to do. As such it is not subject to the time limitation applicable to a motion for remission of the forfeiture.

The County Court clearly had the inherent power to declare null and void an act by which it accepted and approved a bond which it had no authority in law to accept, because of an express statutory prohibition, and by which it released defendant from custody by admitting him to bail, which it was forbidden to do by statute. However, the judgment entered thereafter upon the forfeiture based upon such void bond and recognizance must be vacated by the Supreme Court rather than the County Court since, when the County Court, pursuant to statute, authorized the docketing of judgment as though it were in an action upon a debt (Code Crim. Pro., § 595) by directing it to be filed in the office of the County Clerk of Queens County it became a Supreme Court civil judgment. (See Gildersleeve v. People, 10 Barb. 35; People v. Lott, 21 Barb. 130; People v. Hickey, 5 Daly 365, 374; People v. Quigg, 59 N. Y. 83, 90; N. Y. Const., art. VI, § 11; County Law, § 909.)

We turn now to the merits.

The subject of bail is one which, in this State, is regulated by statute, the court having only such authority to direct the release of a prisoner upon bail and to accept recognizance as is granted by statute. (People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393, 398.)

Section 22 of the Code of Criminal Procedure, which deals with the general jurisdiction of the Supreme Court provides, among other things, that that court has the power [t]o let to bail any person committed before and after indictment found upon any criminal charge whatever.” (Subd. 8; italics mine.) Section 552 of the code entitled “ Offenses not bailable ” provides that a ‘ ‘ defendant cannot be admitted to bail either before or after indictment except by a justice of the supreme court or by a judge of the court of general sessions or a judge of the county court where the defendant is charged * * * [w]ith a felony * * * and * * * there is reason to believe that he has * * * been previously convicted within the state of a felony * * *.” (Italics added.) Section 555 of the code entitled “ Bail after conviction ” (italics mine) provides in part that “ [ajfter the conviction of a crime not punishable with death or life imprisonment a defendant who has appealed, and when there is a stay of proceedings, but not otherwise, may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only; 2. As a matter of discretion in all other cases, except that * * * if the defendant is convicted of any of the crimes or offenses described in section five hundred fifty-two of this code and is circumstanced as there described [which is our case here] he shall not be admitted to bail.” (Italics supplied.)

It will readily be seen, from a reading of the above sections, that a defendant, charged with a felony may be admitted to bail before or after indictment, prior to his conviction, even though there is reason to believe that the crime charged is his second felony offense but that after his conviction of the second felony, though there be a stay of proceedings by a certificate of a judge of our court (see Code Grim. Pro., § 528), bail is prohibited. The general power to bail, both before and after indictment, contained in section 22 of the code does not conflict with the limited power to bail, after conviction, conferred upon the courts by section 555. This is made clear when we note that in subdivision 8 of section 22 bail before and after indictment is provided for, which means before conviction, and that a special section deals with “ Bail after conviction ” (§ 555) which is the title and caption of that section. Although the Legislature has provided for bail and has designated the public official who may grant it, before and after indictment, even in a case where it appears that the defendant has been previously convicted of a felony or certain specified misdemeanors or offenses (§ 552), the Legislature has carefully prohibited any public official from admitting to bail anyone who has been twice convicted of a felony (§ 555). The enactments are part of a general over-all plan and are not conflicting. Even were it the fact, as the District Attorney urges, that subdivision 8 of section 22 of the code is a general provision dealing with the power to bail and section 555 is but a special statute containing a provision prohibiting anyone from admitting to bail a defendant who has been twice convicted of a felony, there is still no conflict since under a well-established principle in the construction of statutes special provisions are not repealed or rendered meaningless or inoperative by general provisions contained in the same statute, the general provisions controlling only where the particular special provision is inapplicable. (See McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 238, and cases cited therein.)

The record discloses, and the parties are agreed, that defendant Wirtschafter’s appeal to our court in 1945 was from a conviction of a second felony offense. Accordingly, a Judge of our court lacked the power to direct that the defendant be admitted to bail pending his appeal to us and the County Court lacked the power to accept the bond tendered. (See Code Crim. Pro., § 551; People ex rel. Bernoff v. Kirby, 265 App. Div. 961; People v. Gould, 169 Misc. 323.)

The admission of Wirtschafter to bail having been unauthorized and invalid, a fortiori, the bond was invalid and without force or effect as a statutory recognizance.

The remaining question in this branch of the case is whether the bond is enforcible as a common-law obligation or by reason of an estoppel.

The overwhelming weight of decisional authority throughout the country is to the effect that a bail bond or recognizance, in a criminal case, which is void as a statutory obligation, because taken without authority, is void for all purposes. It may not be enforced as a common-law obligation nor may the sureties be estopped from asserting its invalidity. (See, e.g., State v. Ricciardi, 81 N. H. 223, and cases cited in annotation 34 A. L. R. 612 et seq., cases collected in 6 Am. Jur., Bail and Recognizance, § 156, where it is writtenA bail bond or recognizance which is void because taken without authority binds neither the principal nor his sureties. * * * Moreover, it has been adjudged that a statutory bond that is void for want of authority in its execution is not enforceable as a common-law obligation.' No estoppel exists against the sureties in such a case ’ ’; cases collected in 8 C. J. S., Bail, § 43, where it is said: “It is a constantly recurring principle that the right to bail must be secured by law, and that bail allowed or a recognizance taken by a court without jurisdiction or an officer without authority, or a bail bond taken by an officer without authority to do so, is void.”)

The cases collected in the cited notes which take such view are well reasoned. The argument, here made, that the delivery of the defendant from prison and his enjoyment of liberty by reason of the bond, is a valid consideration rendering the bond enforcible, has been rejected by the authorities as being untenable. They hold that the State, being an artificial being which acts through its officers who have no authority, independently of statute, to agree upon the terms and conditions upon which the discharge of a prisoner shall be had and, who accordingly, lack capacity to take a bail bond or recognizance unless authorized by express law, cannot by their forbidden and illegal acceptance of an undertaking, create a debt in the State’s favor. Neither the prisoner nor his surety obtained anything in a legal sense. Wirtschafter was released on bail in direct contravention of statute and could have been rearrested at any time. It is manifest, therefore, that the arrangement lacked that mutuality which characterizes every valid and enforcible undertaking. Since the direction that defendant be admitted to bail pending the appeal to us was expressly forbidden by law it was the duty of the officer having him in charge to refuse to recognize that unauthorized and illegal direction. Had he so acted and refused to release Wirtschafter on bail, the legality of his action could not be questioned. The State may not be permitted to create a debt and collect money for itself by the forbidden and unlawful acts of its own officers.

The cases of McClare v. Massachusetts Bonding & Ins. Co. (266 N. Y. 371), and Toles v. Adee (84 N. Y. 222) are distinguishable from the present case.

In the McGlare case (supra) the State Athletic Commission, without authority, exacted from an athletic club a surety bond to secure payment, upon the demand of the State Athletic Commission, of 11 any and all indebtedness or liability by said principal due or owing to any person, firm or corporation by reason of any matter or thing arising out of any sparring or wrestling match or exhibition conducted by the said principal ”. Plaintiff knew of the existence of the bond and in reliance thereon furnished the principal-athletic club with labor and materials and obtained a judgment for the same which remained unpaid. The State Athletic Commission determined that the sum, so owed, was applicable to sparring or wrestling matches conducted by the athletic club and made demand that the same be paid. Defendant surety company refused to pay and an action was commenced on the bond. We reversed the Appellate Division’s affirmance of an order dismissing the complaint for insufficiency. We held that the fact that the State Athletic Commission may have exceeded its statutory powers in exacting the bond was immaterial. The bond was given for the benefit of specified third parties, for good and sufficient consideration, who acted in reliance thereon, hence, the compensated surety was estopped to deny liability. However, there it will be seen, the plaintiff, the third party acting in reliance upon the bond, was not guilty of any fault or wrongdoing. The athletic club, on the other hand, by having given the bond, impliedly, if not expressly, represented to persons, such as plaintiff, that it was safe to extend credit upon the strength of that bond. It thereby induced plaintiff to act where it might not otherwise have acted. Had the athletic club or its surety been permitted, thereafter, to deny the validity of the bond they would have profited wrongfully and at the expense of an innocent plaintiff. It was, therefore, consonant with the ends of justice to hold that the compensated surety was estopped to deny the validity of the bond. As is pointed out in Corpus Juris Secundum (Vol. 31, Estoppel, § 3): “ It is commonly stated in many decisions that estoppels are odious and are not favored in law because they exclude the truth. Nevertheless, the wisdom and justice of the principle of estoppel * * * are generally recognized, the view being founded on principles of equity, morality, and justice, and in accord with good conscience, honesty, and reason; and, as such, the doctrine subserves its true purpose as a plain, practical, fair, and necessary rule of law.”

Here, the plaintiff (the State) is the party who accepted the bond in violation of law. The State is also the party seeking to assert an estoppel against defendant. If the defendant was guilty of wrongdoing in asking that Wirtsehafter, a second felony offender, be released on bail, so also was the State, through its officers, wrong in releasing him in violation of law. To permit the State, a wrongdoer, to claim the benefit of the doctrine of estoppel would not be in accord with “ principles of equity, morality, and justice ” nor in harmony with “good conscience, honesty and reason ”, but in subversion of those principles.

In the Toles case {supra) plaintiff procured an order of arrest against defendant in a civil action. The defendant was thereafter released by the sheriff on a bond which was not in conformity with the court order but which was approved and accepted by plaintiff’s attorneys. The judgment in the action was for the plaintiff and suit was commenced upon the undertaking. The defense raised was that since the undertaking was not in conformity with statute it was void and that no action could be maintained thereon. We held that the action was maintainable stating (pp. 237, 238): “It is competent for the parties, independently of the statute, to agree upon the terms and conditions upon which the discharge shall be had. * * * The evidence shows that the sheriff declined at first to take the undertaking in question, doubting his authority to do so. He did not take it in the exercise of his official authority. He simply, as the transaction is proved, consented, at the solicitation of Adee, to act as the intermediary to ascertain whether the plaintiff’s attorneys would accept the undertaking, and, discharge him from arrest. When the plaintiff’s attorneys consented to the proposition and accepted the undertaking, it became operative and binding, not as a statutory obligation, but as a common-law agreement between the parties, for a breach of which an action would lie, as upon any other assumpsit.” As mentioned {supra, p. 522) it was not competent for the parties here, independently of statute, to agree upon the terms and conditions upon which the discharge of Wirtschafter could be had. Those terms have been fixed by the Legislature and may not be varied by the courts or the attorneys for the People. The release of a prisoner, in a criminal case, on conditions other than those prescribed by the Legislature is a void act.

Thus, it is clear that the surety company is entitled (1) to have the bond declared null and void, and (2) to have the judgment entered on the forfeiture of that void bond, vacated.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to the County Court to declare the bond and recognizance null and void without prejudice to a motion thereafter to be made in the Supreme Court to vacate the judgment entered upon the forfeiture of such bond and recognizance.

Desmond, J.

(dissenting). The question is: may a compensated surety and its indemnitor, on a bail bond, escape forfeiture and liability when the convicted defendant absconds, by showing that the release on bail was impermissible under section 552 of the Code of Criminal Procedure, because the defendant’s conviction was for a second felony? Public policy and the interests of public justice certainly call for a negative answer to that question, and there is nothing to prevent it, since (whatever be the law in other jurisdictions) there is no New York statute or controlling decision on the question, and such New York authority as we have points unmistakably toward holding the surety liable. The decision we should follow here is McClare v. Massachusetts Bonding & Ins. Co. (266 N. Y. 371, 375) which held that a compensated surety, which had issued to a New York State commission a bond unauthorized by law, was estopped from denying its validity. ‘ ‘ The defendant surety, when it solicited this bond, must have been aware of the terms of the statute creating the State Athletic Commission, and all the other circumstances under which the bond was given, and yet voluntarily sought the premium and gave the bond in the light of this knowledge. This bond was not made conditional, depending upon the validity of the regulations of the State Athletic Commission. The statute and the circumstances under which the bond was issued have not changed. The only change is that the liability provided for in the bond has arisen. Tinder these conditions, the surety either knew the law or it cannot now plead ignorance of it and obtain the aid of a court in holding void a bond duly executed, which for the purposes of receiving premiums, it held out as valid then.” Even the dissent in the McClare case (supra, p. 382) suggests that, had not the bond there run to third parties to whom the commission owed no duty, it would have been held enforcible as a “ common law ” contractual obligation. We do not have to go so far at this time as to hold that a public officer, taking an illegal bond, may (like a private obligee, see Toles v. Adee, 84 N. Y. 222, 236; Mittnacht v. Kellermann, 105 N. Y. 461, 467) enforce it as a binding contract, when there has been consideration for it and reliance on it by the public officer. All we need here, as a ground for an obviously right and just result, is the estoppel ground of McClare v. Massachusetts (supra), a ground just as valid here as there. There is no reason why the People of the State of New York cannot have the benefit of an estoppel.

The judges who ordered and approved this bond acted erroneously in law, because of a mistake of fact. They were not without general jurisdiction of the person and the subject matter. Their error was committed not by way of casting an unauthorized burden on a citizen, but by way of releasing him from custody on his own motion. “ There is an obvious distinction between cases where a charge or burden is attempted to be fastened upon a party by a proceeding in invitum, and those where the charge or burden springs from his own voluntary act ” (People v. Kane, 4 Denio 530, 545). Certainly, the defendant himself would have been estopped or prevented by the courts from using that mistake of fact to resist rearrest, had the mistake been discovered. A fortiori, the surety who took a premium for writing the bond should get no benefit from a judicial mistake of fact.

The order should be affirmed, with costs.

Lewis, Ch. J., Dye and Fboessel, JJ., concur with Conway, J. ; Desmond, J., dissents in opinion in which Fuld, J., concurs; Van Voobhis, J., taking no part.

Order reversed, etc.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    Rebecca Swidler et al., Appellants, v. Knocklong Corp., et al., Respondents.
    Argued May 19, 1953;
    decided July 14, 1953.

      Jacob Krisel and George Lessall for appellants.
    I. To permit the default judgment of partition to have the effect of validating the tax deed, itself obtained without notice to the owners, where

      the order for service by publication dispensed with mailing the summons, constitutes the taking of property without due process. (Valz v. Sheepshead Bay Bungalow Corp., 249 N. Y. 122; City of Buffalo v. Hawks, 226 App. Div. 480, 251 N. Y. 588; City of Utica v. Proite, 178 Misc. 925, 288 N. Y. 477; Mullane v. Central Hanover Tr. Co., 339 U. S. 306; New York v. N. Y., N. H. & H. R. Co., 344 U. S. 293; Wuchter v. Pizzutti, 276 U. S. 13; Shushereba v. Ames, 255 N. Y. 490; Matter of Security Trust Co. of Rochester, 189 Misc. 748, 277 App. Div. 837; Korn v. Lipman, 201 N. Y. 404; County of Nassau v. Foster, 279 App. Div. 1094.) II. Notice to redeem not having been given to the record owners, the County Treasurer’s tax deed was void and conveyed no title. (City of White Plains v. Hadermann, 272 App. Div. 507, 297 N. Y. 623; Dunkum v. Maceck Bldg. Corp., 256 N. Y. 275; Helterline v. People, 295 N. Y. 245; Lockwood v. Gehlert, 127 N. Y. 241; Wallace v. McEchron, 176 N. Y. 424; Olds v. City of Jamestown, 280 N. Y. 281.) III. Where a court does not have jurisdiction of defendant or subject matter, its judgment is of no effect; fraud committed in these jurisdictional matters is extrinsic fraud which destroys any judgment as though the court had no jurisdiction; these matters may be demonstrated in a collateral attack on a judgment. (Lapiedra v. American Sur. Co., 247 N. Y. 25; Risley v. Phenix Bank of City of N. Y., 83 N. Y. 318; Woodward v. Mutual Reserve Life Ins. Co., 178 N. Y. 485; Mandeville v. Reynolds, 68 N. Y. 528; Ferguson v. Crawford, 70 N. Y. 253; Matter of Spring, 280 App. Div. 642; Arcuri v. Arcuri, 265 N. Y. 358; Jacobowitz v. Herson, 268 N. Y. 130; Roderigas v. East Riv. Sav. Inst.., 76 N. Y. 316.) IV. The County Court had no jurisdiction of an action to validate a void deed under the guise of a pretended partition; its judgment is, therefore, void and may be attacked collaterally. (Hughes v. Cuming, 165 N. Y. 91; Jasper v. Rozinski, 228 N. Y. 349; Thomas v. Harmon, 122 N. Y. 84; Stappenbeck v. Mather, 73 Misc. 434; Ertrachter v. Locust Bldg. Co., 102 Misc. 368; Majestic Tile Co. v. Nicholls, 161 Misc. 231; O’Connor v. O’Connor, 249 App. Div. 515; Side v. Brenneman, 7 App. Div. 273; Fraser v. Bowerman, 104 Misc. 260, 187 App. Div. 926; Mandeville v. Reynolds, 68 N. Y. 528.) V. Plaintiffs’ right are not barred until the entry of a judgment in an action pursuant to the Nassau County Administrative Code. (Seafire, Inc., v. Ackerson, 193 Misc. 965, 275 App. Div. 717, 302 N. Y. 668; French v. Edwards, 13 Wall. [U. S.] 506; Lockwood v. Gehlert, 127 N. Y. 241; Matter of City of Rochester, 208 N. Y. 188; Connolly v. Denton, 184 Misc. 761; Greenleaf v. Brooklyn, F. & C. I. Ry. Co., 141 N. Y. 395; Karameros v. Luther, 279 N. Y. 87; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304.) VI. To permit the partition judgment to bar plaintiffs ’ rights is to sanction the use of these judgments as an instrument of fraud. (Mandeville v. Reynolds, 68 N. Y. 528; Tax Lien Co. v. Schultze, 213 N. Y. 9; Matter of Edwards, 196 Misc. 997; House v. Lockwood, 137 N. Y. 259; New York & H. R. R. Co. v. Haws, 56 N. Y. 174; 755 Seventh Ave. Corp. v. Carroll, 266 N. Y. 157.)

      Charles E. Lapp, Jr., for Knocklong Corp., respondent.
    I. There are no questions of law. (Gautier v. Ditmar, 204 N. Y. 20; People ex rel. Quaranto v. Moynahan, 148 App. Div. 744, 205 N. Y. 590; Keely v. Sanders, 99 U. S. 441; People ex rel. Atkins v. City of Buffalo, 63 App. Div. 563; League v. Texas, 184 U. S. 156; City of New Rochelle v. Echo Bay Waterfront Corp., 268 App. Div. 182, 294 N. Y. 678; Delavan Home & Land Co. v. County of Erie, 188 Misc. 299, 294 N. Y. 847; County of Nassau v. Foster, 279 App. Div. 1094; Valz v. Sheepshead Bay Bungalow Corp., 249 N. Y. 122.) II. The findings of the lower courts exonerating defendants of any fraud, concealment or misrepresentation were determinations of fact, amply supported by evidence, and should not be disturbed. (Boyd v. Boyd, 252 N. Y. 422; York Mtge. Corp. v. Clotar Constr. Corp., 254 N. Y. 128; Costa v. Benger, 254 N. Y. 510; Gilbert v. Real Estate Co. of Brooklyn, 155 App. Div. 411; Karsch v. Kalabza, 144 App. Div. 305; Hansen v. Brooklyn Trust Co., 246 App. Div. 843; Johnson v. R. T. K. Petroleum Co., 289 N. Y. 101; Housman v. Waterhouse, 191 App. Div. 850; Carr v. Morris, 191 App. Div. 671; Latham v. Sheff, 193 App. Div. 576.) III. Honest mistakes in an affidavit for publication will not nullify the final judgment or order for publication nor prevent the acquisition of jurisdiction over defendants so served. The findings below of good faith and lack of concealment required a dismissal of the complaint. (Ward v. Town of Southfield, 102 N. Y. 287; Mandeville v. Reynolds, 68 N. Y. 528; Ross v. Wood, 70 N. Y. 8; Mayor of

      City of N. Y. v. Brady, 115 N. Y. 599; Parham v. Burns, 135 App. Div. 884, 201 N. Y. 559; Reich v. Cochran, 105 App. Div. 542; Ingalls v. Merchants’ Nat. Bank, 51 App. Div. 305; Rice v. Bruff, 87 Hun 511; Arcuri v. Arcuri, 265 N. Y. 358; Crouse v. McVickar, 207 N. Y. 213; Aparicio v. New England Equitable Ins. Co., 177 App. Div. 551, 221 N. Y. 629.)

      E. Robert Pratt for Gresa Realty Co., Inc., respondent.
    I. Appellants have not shown the affidavit to be fraudulent. Therefore, the County Court judgment is an absolute bar to this action and the judgment below, dismissing the complaint, must be affirmed. (Wilhelm v. Wood, 151 App. Div. 42.) II. In any event, as between two innocent parties, appellants and respondent Gresa, Gresa must prevail. (Deyo v. Hudson, 225 N. Y. 602; Van Schaick v. National City Bank of N. Y., 245 App. Div. 525, 271 N. Y. 570; McConnell v. Hellwig, 190 App. Div. 244; Kantor v. Cohn, 98 Misc. 355.)
   Desmond, J.

Plaintiffs Swidler and Miller, on the one hand, and defendant Gresa Realty Co. on the other, make conflicting claims to the ownership of vacant land in Nassau County. Swidler and Miller claim under a deed to their predecessors from the heirs of Katherine Laffey, a former owner who died in 1920. Defendant Gresa claims through predecessors who purchased a tax title resulting from a Laffey default in paying, and from the sale of, a school tax installment. Most simply stated, the situation is this: in December, 1948, defendant Gresa’s predecessor took a tax deed which purported to wipe out the ownership of Katherine Laffey; that tax deed grantee, however, failed, after the tax sale, to give an appropriate notice to redeem, since the notice to redeem which was sent by that predecessor, was directed to Katherine Laffey, who was long since dead; that tax deed grantee (defendant Gresa-*s predecessor) then started a partition action, hereinafter referred to, naming the Laffey heirs as defendants and asking that their interests if any be cut off, in which action a lis pendens was filed on January 20, 1949. However, the heirs of Katherine Laffey, who apparently did not know of, or who had ignored, the previous tax sale and deed, sold the property, by deed recorded January 28, 1949, eight days after the lis pendens, to predecessors of plaintiffs, for value. In March, 1949, defendant Gresa’s predecessor, as plaintiff in the partition action above referred to, obtained an order for publication, as against the Laffey heirs; they were served by publication, and eventually a judgment was entered against them, wiping out, or purporting to wipe out, the Laffey interest.

The present action was brought under article 15 of the Beal Property Law to get an adjudication that the tax title to which defendant Gresa succeeded is void for two alleged reasons: first, because the notice to redeem was never served on the Laffey heirs, but was attempted to be served on Katherine Laffey who was dead; and, second, because, as plaintiffs claim, the order and service by publication above referred to in the partition action was “ void ”, since it was based on an affidavit that the Laffey heirs could not be found, whereas, if a more complete search of certain Nassau County records had been made, there would have been discovered the deed from the Laffey heirs recorded a few days after the lis pendens, and which deed contained the addresses of the Laffey heirs.

This present action was tried on undisputed basic facts, and resulted in a judgment in favor of defendánts, with a brief opinion in which the Trial Justice said that the only issue was whether there had been a constructive fraud on the court, in the earlier (partition) action, in that the order of publication therein was obtained on affidavits which said that the Laffey heirs could not be located, whereas in fact the search of Nassau County records for clues as to their whereabouts had been made only up to the time of filing the lis pendens, and a later search of the records would have shown the later deed from the Laffey heirs to the predecessors of plaintiffs. The trial court held that the attorney who brought that suit, in obtaining the order of publication, had not actually deceived the court, and that there was no constructive fraud, so that the judgment in that earlier action was good, and wiped out the interest of the Laffey heirs and their successors in title, (plaintiffs). No opinions were written on the affirmance in the Appellate Division.

We will attempt to clarify all this, and summarize the undisputed proof, in this chronological table:

February 9,1920 — Katherine Laffey, record owner (no mortgage on property) died intestate, leaving the “ Laffey heirs ”.

December 11,1946 — the County Treasurer of Nassau County sold these premises for unpaid second half 1946 school taxes of $51, to defendants here, Connolly and Knocklong; it seems undisputed in the record that the property was worth several thousand dollars and was afterwards sold to plaintiffs l'or $10,000 and to defendant Cresa for $6,000; it is undisputed, too, that defendant Connolly, one of the tax purchasers, was a sister of the special tax counsel for the County Treasurer of Nassau County, that defendant Knocklong was a corporation which had its office in the tax counsel’s office, and that the lawyer who afterwards acted in the partition suit for Knocklong was a sister and office associate of the special tax counsel.

September 8, 1948 — the tax purchasers attempted to serve, by mail, a three months ’ notice to redeem on Katherine Laffey, but, since she was dead, the notice was never delivered but was returned to the senders.

December 13,1948 — the Nassau County Treasurer gave a tax deed to Connolly and Knocklong, which was recorded January 17, 1949.

January 20, 1949 — Knocklong filed the lis pendens and summons and complaint, in an action in County Court, Nassau County, against Connolly and the Laffey heirs, for a partition of this property (and a number of other non-Laffey parcels) between Knocklong and Connolly, asking, also, for a judgment that the Laffey heirs had no right, title or interest; it was in this County Court action that the now contested order of publication against the Laffey heirs Avas obtained (see below).

January 28,1949 — deed dated January 21, 1949, recorded in Nassau County, from all the Laffey heirs to Leighton, predecessor of plaintiffs, a mortgage being given back by Leighton to the Laffeys; this deed contained the residence address of the Laffey heirs, but this transaction was closed Avithout the parties knowing of the tax sale and deed, or that there was already on file the County Court lis pendens and complaint above referred to, although the parties to the Laffey-Leighton sale Avere represented by attorneys, later tax bills received by the Laffeys showed “arrears”, and a search was made of the records; actually a title searcher had found the lis pendens but the abstract company, it seems, paid no attention to it.

February 21,1949 — deed from Leighton to plaintiffs recorded.

March 28, 1949 — affidavit filed by the attorney for plaintiff Knocklong, in the County Court suit above referred to, also an affidavit by one Keyes, both of which affidavits described elab orate efforts to locate the Laffeys, the lawyer’s affidavit stating, among other things, that she had caused the Nassau County records to be searched and had found no record of any conveyance or instrument affecting the title or made by any defendant since acquisition of title; technically speaking, the lawyer’s affidavit was perhaps incomplete or even, possibly, misleading, since no search had been made of the public office records after the filing of the lis pendens; the Keyes affidavit, however, described efforts to serve the papers, without giving dates, but necessarily those were efforts made after the lis pendens had been filed; on these affidavits there was made an order of publication with mailing dispensed with, against the Laffeys, and there is no dispute that service by publication against them was made, as prescribed by the order.

June 22, 1949 • — • judgment was entered in favor of Knocklong in the partition action above referred to, which judgment barred the Laffey heirs and their successors and decreed Knocklong and Connolly, the tax purchasers, to be tenants in common of the property; Knocklong afterwards conveyed its interest to Connolly.

November 9,1949 — the Laffeys made a motion to vacate the judgment just above referred to, but that motion was later withdrawn because made in the wrong court.

November 10, 1949- — Connolly conveyed the premises to defendant Gresa for value; this deed was made on the day after the motion just above referred to but there is no proof or finding that Gresa knew of the alleged defects in Connolly’s title.

April 24, 1950 — this present action was brought in an effort to obtain an adjudication that Gresa’s record title is void because of the inadequate notice to redeem from the tax sale, and because, as claimed by plaintiffs here, there was a constructive fraud on the court in the obtaining of the publication in the County Court action, in which there was a later judgment barring the Laffey’s claim to the land.

The view of the trial court here was that the whole question was as to whether the publication order had been obtained by a constructive fraud on the court. The court’s holding was that there was no such fraud and, apparently, the basis for that was this: the attorney’s affidavit, in procuring the publication order, may have been technically inaccurate or vague in that it referred to a search of the records but did not show that such a search had been made up to the time of the lis penclens only; however, as we assume, the Judge had in mind, and we may take judicial notice, that the filing of a lis pendens in such an action is a cutoff point, and that anything done with the title thereafter is subject to Us pendens, so, it would seem, a lawyer would be justified in asking for an order of publication on the basis of information available up to the time of the lis pendens filing. There is no dispute here as to the testimony that a search of records up to the lis pendens date only, and the use of this form of affidavit, represented customary practice in Nassau County in such cases. There is no claim here that there was any other constructive fraud on the court and the affidavit of the attorney, and that of Keyes, on which the order of publication was granted, show an elaborate but unsuccessful search for the Laffey heirs. Of course, it is true, as it always must lie true as to actually living persons, that sufficient further search (such as inquiring from lawyers wrho had represented them years before, etc.) would have found them, but that objection could be made as to any order of publication against missing persons.

Cases like Valz v. Sheepshead Bay Bungalow Gorp. (249 N. Y. 122) say that the failure to make due service by publication may (it did not in that case) void a judgment affecting real property, and that such voidness may be established, collaterally, in a separate action like the present one. However, the Vais opinion itself points out that, on such a collateral attack in an action like the present one, the question is whether the prior judgment was so far invalid as to amount to a denial of due process. That question has been decided in this present action by both courts below in favor of the validity of the service in the prior action, and we could not hold, as matter of law, that the affidavits on which the publication order was obtained were so fraudulent as to make the order itself, and the subsequent service and judgment, nullities. The affirmed finding below is that there was no fraud at all.

The Trial Term held, and appellants practically concede here, that they are not entitled to succeed in this action unless they have established that the attorney’s affidavit on which the order of publication was granted was so fraudulent as to make the order of publication and the service pursuant to it, and the judgment entered thereon, absolutely void. To get judgment here they had, of course, to do much more than show that a better or more complete search for the Laffey heirs could have been made, or that the affidavit was not sufficiently definite as to facts, or that the Special Term which granted it could have rejected it as insufficient, and asked for more proof. The affidavit, it seems to us, was, on its face, a sufficient basis for an order of publication and so the publication order was not jurisdictionally defective (see discussion in Kennedy v. Lamb, 182 N. Y. 228, and cases cited therein). It must be remembered that this is a collateral attack, by action, on a judgment in another cause, and the plaintiffs have the heavy burden of establishing that, in issuing the order of publication, the County Court was defrauded (see Reich v. Cochran, 105 App. Div. 542, 553 et seq.). There is strong authority in this court (Ward v. Town of Southfield, 102 N. Y. 287, 293) that for a successful collateral attack, by action, on a judgment there must be a clear and satisfactory proof of actual, and not constructive, fraud.

Appellants place principal reliance upon Lapiedra v. American Sur. Co. (247 Ñ. Y. 25) but the situation there was quite different. There the Surrogate, on an allegation that an administrator had been removed, appointed a new administrator, whereas in fact the previous administrator had never been removed at all. This court quite properly held that, since the removal of the former administrator was the sole necessary jurisdictional fact for the appointment of a successor, the appointment of a successor by the Surrogate, on his mistaken belief that there was a vacancy, was a wholly void judicial act. We do not see the pertinence of that case here.

Appellants argue also, as pointed out above, that the original tax deed was void, since no proper notice to redeem was ever served, and argue that, the judgment in the partition action could not remedy that defect, particularly since the holders of the tax deed or their successors did not bring such an action for validation of a tax deed, as is prescribed and described in section 5-57.1 of the Nassau County Administrative Code (L. 1939, ch. 704). As to the first of those contentions, that is, that the tax deed itself was void because of a failure to serve the notice to redeem on living persons, the answer seems to be in subdivision g of section 5-51.0 of the Nassau County Administrative Code which says specifically that the validity of such a deed shall not be affected or impaired by the failure to give notice to redeem, but that the time to redeem shall continue until the entry of judgment in a so-called code action under section 5-57.1. The best that appellants can claim, from this situation, is that because of the failure to give the notice'to redeem or to bring a Code action ”, their time to redeem is still running, possibly, but it is the undisputed fact here that appellants have never attempted or offered to redeem and are not doing so now. The present action is brought under the theory that defendants simply have no title at all. It is true that, instead of the partition action, the tax purchasers could have brought a ‘ ‘ Code action ’ ’, and that in that action they would have (by statute) been required to give the former owners an opportunity to redeem. However, the tax purchasers were under no obligation to bring a so-called “ Code action ” since, as the Nassau County Administrative Code itself says, {supra) their deed was valid despite the failure to give notice to redeem. The prime question therefore is whether the judgment in the partition action barring the Lafifey heirs was good against collateral attack. We are convinced that it was. We see no reason to doubt that, despite the statutory provisions for a “ Code action ”, any alleged rights of former owners might be barred in a partition action, as they could be in a mortgage foreclosure action, or any other appropriate form of suit. The Nassau County Administrative Code does not limit a tax deed grantee to a code action, but is permissive.

Appellants hero make much of what might be considered suspicious circumstances such as the relationship between Hurley, the special tax attorney, the attorney for plaintiff in the partition suit, and Connolly and Knocklong, and the failure of the latter attorney to examine county records after the lis pendens, but no proof of actual fraud was attempted except as plaintiffs sought unsuccessfully to have inferences drawn from the records and these circumstances; they were met with proof, which the courts below accepted, that there was no actual or constructive fraud, that the failure to search these records for the period between January and March, 1949, was customary, and that its dire results here were due not to any fault on the part of the attorney in the partition action, but to the unaccountable failure of title examiners to note, or act upon, defects appearing in the direct chain of title, since not only the tax deed, but the Us pendens naming the Laffey heirs had been filed and indexed before the predecessors of plaintiffs took title. Respondent G-resa says that these facts bring into play the rule of Deyo v. Hudson (225 N. Y. 602) and similar cases, that where one of two innocent persons must suffer from the fraud of the third, the loss must fall on the one principally at fault for letting the third party do the injury (see Van Schaick v. National City Bank, 245 App. Div. 525, affd. 271 N. Y. 570; and Industrial Bank of Commerce v. Packard Yonkers Corp., 304 N. Y. 622). In other words, respondent Gresa says that both Gresa and plaintiffs are innocent purchasers for value, but that both acted on separate mistakes of fact and that if there was any fraud (none was found here), then plaintiffs and their predecessors were principally to blame for the ultimate results thereof, in that they overlooked or ignored the tax deed and the lis pen-dens. But this “ innocence doctrine is rather a vague one, and its application to the present facts is not free from doubt, so we do not rely on it.

The judgment should be affirmed, with costs.

Lewis, Oh. J., Dye, Ftjld, Froessel and Van Voorhis, JJ., concur; Conway, J., concurs in the result upon the ground that the jurisdictional defect claimed to have been present in the partition action does not appear upon the face of the record there and thus, being latent, may not be reached by collateral attack m an independent action.

Judgment affirmed.


author: Lewis, Ch. J. Desmond, J.

text:
    In the Matter of the Arbitration between William J. Bohlinger, as President of the International Union of Operating Engineers, Local No. 94, AFL, Appellant, and National Cash Register Company, Respondent.
    Argued April 14, 1953;
    decided July 14, 1953.

      Harold L. Luxemburg for appellant.
    I. An agreement to arbitrate “ any matter not provided for in [the] Contract ” encompasses a dispute concerning the discharge of employees. (Matter of Buffalo & Erie Ry. Co., 250 N. Y. 275; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Kelley, 240 N. Y. 74; Matter of Utility Laundry Service [Sklar], 300 N. Y. 255; Matter of Compagnie Francaise des Petroles [Pantepec Oil Co., C. A.], 279 App. Div. 851; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Locke v. Filley, 14 Hun 139; Matter of Bullard [Grace Co.], 240 N. Y. 388.) II. Whether or not the contract provided for arbitration of discharges is a question of fact to be decided by the arbitrator. (Matter of Pierce [Brown Buick Co.], 283 N. Y. 669; Matter of Kahn [National City Bank], 284 N. Y. 515; Matter of Behrens [Feuerring], 296 N. Y. 172; Matter of Western Elec. Co. [Communications Workers of America], 304 N. Y. 578; Robertson v. Ongley Elec. Co., 146 N. Y. 20; Matter of Freydberg Bros. v. Corey, 263 App. Div. 805; Matter of Goldberg Enterprises [Schaye], 222 App. Div. 729.)

      George W. Foley and Thomas F. Fennell, II, for respondent.
    I. The alleged dispute concerning the discharge is not arbitrable because, in the absence of restriction, the employer had the absolute right to discharge. (Matter of International Assn. of Machinists [Cutler-Hammer, Inc.], 271 App. Div. 917, 297 N. Y. 519; Matter of Belding Heminway Co. [Wholesale & Warehouse Workers’ Union], 295 N. Y. 541; Matter of Bullard [Grace Co.], 240 N. Y. 388; Watson v. Gugino, 204 N. Y. 535; Martin v. New York Life Ins. Co., 148 N. Y. 117; Matter of Local 1482 of Brotherhood of Painters, Decorators & Papers hangers [Clover Leaf Paint & Varnish Corp.], 273 App. Div. 807; Labor Bd. v. Jones & Laughlin, 301 U. S. 1; Stonewall Cotton Mills v. National Labor Relations Bd., 129 F. 2d 629, 317 U. S. 667; Matter of General Elec. Co. [United Elec. Radio & Mach. Workers], 300 N. Y. 262.) II. An arbitrable dispute cannot be supported on the claim that the discharge concerns a matter not provided for in the collective bargaining-agreement.
   Lewis, Ch. J.

This appeal is an outgrowth of a dispute which arose between the union-petitioner and the employer-respondent involving the following provision for arbitration which the parties agreed should be inserted in their contract for collective bargaining: “ Seventeenth: In the event of any dispute between the parties hereto with reference to any matter not provided for in this Contract, or in reference to the terms, interpretations or application of this Contract, such disputes shall be referred to a Board of Arbitration, which shall consist of three members, one designated by the Employer, one designated by the Union, and the third, who shall be the Impartial Chairman, shall be appointed by the first two designated. If no agreement can be reached between the two as to whom should be appointed Impartial Chairman, such appointment shall be made by the New York State Board of Mediation, and the decision of the arbitrators shall be final and binding upon all parties. The expense of such arbitration shall be shared equally by the Employer and the Union.”

On or about January 3, 1952, the employer discharged two employees covered by the collective bargaining agreement, the assigned reason being that, while still on the employer’s payroll, they had worked for a company in competition with the employer during their off hours. The union demanded arbitration of the dispute which it claimed had arisen over the employees’ discharge without notice or warning by reason of their alleged disloyalty. The company resisted the demand for arbitration asserting that the dismissal was a matter outside the terms of the collective bargaining agreement and was therefore a matter not subject to arbitration.

When the union persisted in its demand, the employer moved at Special Term for an order directing that arbitration be permanently stayed on the ground that there was no agreement between the parties providing for arbitration of the alleged dispute and that the alleged dispute was not arbitrable. At Special Term the employer’s motion was denied upon the ground that the express language of the provision for arbitration included disputes as to matters not covered by the contract. The court thereupon concluded that inasmuch as the discharge of employees was a matter not expressly covered by the contract, the propriety of the discharge was a subject for arbitration under the clear terms of the contract.

At the Appellate Division where, by a divided court, the order denying the stay of arbitration was reversed and the employer’s motion was granted, the court ruled that the collective bargaining agreement placed no restriction on the inherent right of the employer to discharge an employee with or without cause and hence, in the absence of such an inhibition, the employer retained an absolute right to discharge. Upon that reasoning, a majority of the court concluded that there was no violation of any obligation owed to any employees and since no obligation had been violated, there could be no dispute subject to arbitration.

The clause in controversy, it is plain, contemplated the submission to arbitration not only of the terms, interpretation and application of the collective bargaining agreement itself, but also any dispute which might arise in respect of matters not provided for in the agreement. There can be no claim of ambiguity in the language chosen to express what the parties intended; nor does it appear that the language agreed upon failed to express that intention. The failure to allude specifically to every possible area of dispute should not result in making an arbitration clause unworkable where the parties have specifically said that it was their intention to include “ any dispute * * * with reference to any matter not provided for in this Contract ”. (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76, 80.) There is another provision in the contract to which our inquiry is directed: Paragraph Fifteenth ” provides that a distinction should be made “ between discharge and lay-off of employees ’ ’, and insofar as material here, then provides: “ * * * In the case of discharge it is the intent permanently to terminate the employee’s employment. In the case of lay-off, the cessation of employment is intended to be only temporary. ’ ’ The clause then sets forth how the principle of seniority shall be applied in the case of a lay-off.

The clause of the contract last quoted above actually defines a discharge, but the agreement, as both the employer and the union agree, otherwise fails to provide whether the employer shall have the right to discharge without notice and without cause. Each party disputes the effect of that omission. The employer contends that because the contract failed to mention the right of discharge, the agreement retained for the employer its common-law right to discharge at will. The union, referring to the same omission, argues that because the contract defined a discharge and then failed to secure any right to the employer to discharge employees, any discharge by the employer thereby gave rise to an arbitrable dispute. We need not resolve that dispute as to how the collective bargaining agreement should be construed because its mere statement demonstrates conclusively that under the broad language of the arbitration clause, the opposing contentions of the parties ought to be resolved by the arbitrators in respect of its interpretation.

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

Desmond, J.

(dissenting). This employer had, in the absence of countervailing statute or agreement, an absolute, common-law right to discharge its employees, with or without cause (Watson v. Gugino, 204 N. Y. 535, 541; Martin v. New York Life Ins. Co., 148 N. Y. 117,121). Since, concededly, no statute and no agreement has cancelled or cut down that right, there is nothing here to arbitrate. True, the arbitration clause is a broad one, but not broad enough to send to arbitrators a supposed question of whether the employer has waived his common-law right or agreed to arbitrate as to discharges, when there is not a word in the agreement to say or suggest that the parties were dealing with any such matter.

Indeed, appellant concedes in its brief on this appeal, that ‘£ on the face of the contract there appears no limitation of the right of the employer to discharge.” Since there was.no such contractual limitation, the right remained, unimpaired, and no ££ dispute ” about it could arise merely on appellant’s say-so. Furthermore, there is in the contract itself (article Fifteenth) evidence that the parties were, knowingly, abstaining from any agreement as to discharges. After defining lay-off ” and ££ discharge ” and noting that a distinction is being made between “ discharge ” and ££ lay-off ”, the agreement makes certain rules as to ££ lay-offs ” but none as to ££ discharges ”. In practical effect, that was a declaration that the employer’s rights as to discharges were unimpaired by the agreement.

There should be an affirmance, with costs.

Conway, Fuld and Froessel, JJ., concur with Lewis, Ch. J.; Desmond, J., dissents in opinion in which Dye, J., concurs; Van Voorhis, J., taking no part.

Ordered accordingly.


author: Froessel, J.

text:
    In the Matter of the Claim of Michael Tedesco, Appellant, against General Electric Company, Respondent. Workmen’s Compensation Board, Respondent.
    Argued June 1, 1953;
    decided July 14, 1953.

      Arthur J. Harvey for appellant.
    I. The accidental injuries sustained by claimant arose out of and in the course of the employment. (Matter of Holst v. New York Stock Exch., 252 App. Div. 233; Matter of Chadwick v. New York Stock Exch., 252 App. Div. 714; Matter of Huber v. Eagle Stationery Corp., 254 App. Div. 788; Matter of Fishman v. Lafayette Radio Corp., 275 App. Div. 876; Matter of Piusinski v. Transit Valley Country Club, 259 App. Div. 765, 283 N. Y. 674; Matter of Kenney v. Lord & Taylor, 254 N. Y. 532; Matter of Brown v. United Services for Air, 298 N. Y. 901; Matter of Younger v. Motor Cab Transp. Co., 260 N. Y. 396; Matter of Bowen v. Saratoga Springs Comm., 267 App. Div. 928; Matter of Fagan v. Albany Evening Union Co., 261 App. Div. 861.) II. The statutory presumption that the claim is within the provisions of the Workmen’s Compensation Law is supported herein by the evidence. (Matter of Fischer v. Genesee Constr. Co., 187 App. Div. 850.)

      J. Vincent Smith for General Electric Company, respondent.
    I. The injuries to claimant did not arise out of and in the course of his employment. (Matter of Dearing v. Union Free School, Tonawanda, 272 App. Div. 167; Matter of Janik v. New York Central R. R. Co., 234 App. Div. 642; Matter of Humphrey v. Marcuse, 257 App. Div. 1086; Matter of Rubinstein v. Madison House Soc., 239 App. Div 867; Matter of Wilson v. General Motors Corp., 272 App. Div. 845, 298 N. Y. 468; Matter of Bowen v. Saratoga Springs Comm., 267 App. Div. 928; Matter of Brown v. United Services for Air, 273 App. Div. 932.) II. The evidence shows an absence of management and control exercised by the employer. III. The corporate entity will not be disregarded except in exceptional cases where the corporate form has been used as the instrument of wrong or injustice. (Lowendahl v.
      Baltimore & Ohio R. R. Co., 247 App. Div. 144.) IV. The minutes of the meetings of the board of directors of the GEAA were improperly admitted into evidence.
   Froessel, J.

Claimant was a member of the General Electric Athletic Association (hereinafter called GEAA), a membership corporation open only to employees of General Electric Company or others working in its plant at Schenectady. In addition, former employees who were members of GEAA at the time they left General Electric’s employ were permitted to retain their membership at the discretion of the board of directors. Claimant’s claim for compensation is based upon injuries, consisting of a compound fracture of the left anide, sustained in a softball game conducted under the auspices of GEAA and held on company property. The board, finding that such injuries arose out of and in the course of his employment, made an award. The Appellate Division, Third Department (one Justice dissenting), reversed and dismissed the claim, relying principally upon Matter of Wilson v. General Motors Corp. (298 N. Y. 468), in which compensation cases arising out of athletics or other recreational pursuits were thoroughly canvassed.

The Wilson case (supra) also dealt with an injury resulting from a ball game. There the employees had organized a baseball league. Games were played on their own time in parks in the city of Buffalo, “ many miles from the employer’s plant ” (p. 471). The games were not advertised in any way, and no outside publicity whatsoever attended their playing. They were in no way connected with the employer, and in no manner subject to its control, and no business advantage or benefit accrued to it. In the case before us, there is an abundance of evidence to indicate employer dominance and benefit. Factors not present in the Wilson case are here predominant; hence the principles there enunciated, and upon which we denied an award, operate here to sustain an award favorable to claimant.

GEAA was incorporated in 1930 as a membership corporation. This fact has given rise to some argument as to whether or not compensation can be had here or certain evidence admitted without piercing the corporate veil. It is our opinion that there is no such issue actually presented. The true question is whether or not claimant’s activities as a member of GEAA were so related to his employment as to render an injury in connection therewith compensable; there has been no attempt to assert against the employer a claim which should be made against GEAA. As between claimant and employer, we do not see that it makes any difference that a third party — GEAA — may have been involved in the athletic and recreational program, so long as that program was actually related to the employment in any substantial way. Accordingly, it may not be said that the board disregarded GEAA’s corporate entity; the situation is no different than if the entity were an unincorporated association or any other voluntary organization of employees.

Needless to say, GEAA is maintained as an independent organization, in form at least. Thus members pay dues of $4 per year, and the management of the association and its activities are nominally in the employee-members and the professional staff of GEAA. The circumstances which must. interest us, however, are those indicative of domination by or benefit to the employer. These may be divided roughly into classifications of finances, interrelationship and control.

The T-shaped clubhouse, approximately 210 by 60 feet, and the surrounding 10 acres of enclosed grounds of GEAA are part of the Schenectady plant of the employer, and the association is permitted to use them rent free. Certain charges are made, however, for such items as heat, light, power, taxes, etc. In addition to free rental, free advertising in the employer’s newspaper, as well as other benefits, the stipulated financial statement indicates that the employer subsidized the operations of the association during the years 1939-1947 to the extent of $55,277, and that the association, in turn, paid over to the employer during the years 1934-1938 upwards of $2,000 in excess of current charges. It further establishes that an outright gift of $3,000 was made by the employer in the year 1946 to Cover Loss Attributable to Strike ’ ’ in 1945. How could the employer justify these substantial contributions if they were for noncorporate purposes? There is also testimony in the record that the employer on occasion provided transportation for varsity ’ ’ softball teams to games played on outside fields.

In its very inception, GEAA’s constitution provided for a board of directors, of whom one member was to be appointed by the employer as its representative. Since but two negative votes were required to reject an application for membership, the employer had a 50% control in this respect. It may be noted that, while the certificate of incorporation is dated December 23, 1930, the aforesaid financial statement indicates that there was a functioning organization as early as September, 1930. Members could pay dues by deduction from the employer’s payroll; indeed, 75% of the members did so. Claimant testified that when he joined GEAA he did so by application to the payroll department in the plant, a procedure which, it may be inferred from his testimony, was the regular and usual means of applying for membership. Application cards could be obtained “ via internal mail ” by calling “ ext. 2085 ”.

Athletic and other activities received a great deal of free publicity in the employer’s plant newspaper, Schenectady Works News, in which solicitations for membership also appeared. Sports events, such as ball games, also were publicized and reported in the Schenectady daily newspapers; such games attracted spectators from the general public, who were permitted to attend without charge — all of which advertised the employer. In the interplant leagues, to one of which claimant belonged, teams were formed among the employees working in a particular building or department and were so identified in the aforesaid newspaper articles.

In addition to the athletic activities, the association provides social recreation, as well as a cafeteria and catering service for all of the employees, whether or not members. “ Section parties ” arc held weekly, each party being for a different group of employees. The admitted purpose of these parties is promoting good will amongst employees ’ ’. Such parties are arranged with representatives of the employer, and on occasion the superintendent of the employer would address those present at the party. The management representative on GEAA’s board was consulted about these parties, and would give approval to contact employees during working hours in connection therewith.

The association’s athletic director testified that the clubhouse and facilities were closed down during the 1945' strike and no one was permitted to use the same. He said: “ I didn’t come near the place. I was just told that we were not working and to keep away.” More certain evidence of ultimate control could hardly be found. The company was in the position where it could have stopped the entire program at any time. In fact, it did so for nine weeks.

Minutes of GEAA’s directors’ meetings were put in evidence. The employer objects to this, but in view of the fact that it had a representative on the board and that liberal rules of evidence apply in compensation hearings (Workmen’s Compensation Law, § 118), we see no error in this procedure. Such minutes disclosed that the employer’s representative, Rugen, had, in 1941, discussed with the company’s law department the advisability of discontinuing functions at the clubhouse ‘1 under the present name of General Electric Athletic Association and what steps would be necessary to disband such an organization ”, and that GEAA’s property had apparently been taken over by the company.

At a meeting the following year, Rugen told the board members that he felt GEAA affairs in the future would have closer contact with works management because of Mr. Linder’s “ personal interest in the continued operation of the Club. ’ ’ Linder was then assistant works manager of the plant, and a member of the board of GEAA. At that same meeting Linder stated “ that the temporary Works Recreation Committee had been discontinued and that the Club had been put back into the hands of the G. E. A. A. Board of Directors ”, and that it was definitely hoped no more inroads would be made in the building, but that ‘ ‘ if the war efforts should demand or require more space and that space was available there could be no other alternative than to use it. ’ ’ At the same 1942 meeting, a change in the personnel of the board, to provide for shop representatives, came up, and “ Mr. Linder suggested for the time being they continue on the present basis. He said these men will be most desirable from the company’s viewpoint and that it would be best to minimize disturbance for the moment as much as possible.” In relation to the bowling alleys it was said: “ If there is any possibility of our going into the red on this project, Mr. Linder will be consulted and appropriations for necessary expenditures discussed. ’ ’

The minutes of the 1943 meeting make it plain that candidates for employment with GEAA were contacted and dealt with through the personnel office of the Schenectady plant. Excerpts from the minutes of other meetings tend to further indicate a close relationship with, and domination by the employer over, the activities of GEAA.

There was, it seems to us, more than adequate basis for the board’s conclusion that claimant’s injury was incurred out of and in the course of his employment. All of the activities of GEAA, which are conducted on the employer’s property, are obviously carried out with the sole purpose of providing an integrated plan of recreational activity in which the employer is dominant. However beneficent to the employees such plan may be, its primary motivation is undoubtedly the furtherance of employee relations and the building of an esprit de corps and good will which redound to the benefit of the employer. The inseparable connection with the employment and the complete and ultimate control not only possessed, but exercised, by the employer could hardly be better illustrated than by the complete cessation of association activities during the 1945 strike. The contrast between this and the Wilson case {supra) is thus aptly epitomized in that fact alone. Moreover, the inapplicability of that ease is also illustrated by the presence here, and the absence there, of the following factors, among others: (1) the activities were on the premises; (2) the financial support was substantial, not slight; (3) the control by the employer was dominant; (4) advertising and business advantage benefited the employer; (5) the employer could halt the program at any time.

The order of the Appellate Division should be reversed, and the award of the Workmen’s Compensation Board reinstated, with costs in this court and in the Appellate Division.

Lewis, Ch. J., Conway, Desmond, Dye and Fold, JJ., concur; Van Voorhis, J., taking no part.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v. Frank Wojcik, Appellant.
    Argued December 3, 1952;
    decided February 26, 1953.

      Charles J. McDonough and Eugene V. Buczkowski for appellant.

      Charlotte L. Smallwood, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. William Vanderwyde, Appellant.
    Submitted February 24, 1953;
    decided February 26, 1953.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by the addition of the following: Questions under the Federal Constitution were presented and necessarily passed upon by the Court of Appeals, viz., (1) the appellant contended that the order of the trial court, dated March 27, 1952, granting the motion of the District Attorney for a special jury to try the issues herein, over the opposition of the defendant, was based upon moving papers which were wholly insufficient to warrant the relief applied for; that the granting of said motion for a special jury on insufficient papers constituted a denial of due process and a violation of the defendant’s rights under the Fourteenth Amendment of the Constitution of the United States. (2) The appellant contended that subdivision 4 of section 749-aa of the Judiciary Law of the State of New York as construed and applied in this case constituted a denial of due process and a violation of his rights under the Fourteenth Amendment of the Constitution of the United States. The Court of Appeals held that the rights of defendant under the Fourteenth Amendment of the Constitution of the United States had not been violated or denied. [See 304 N. Y. 937.]


text:
    The People of the State of New York, Respondent, v. Al Keshner, Appellant, et al., Defendants.
    Submitted February 24, 1953;
    decided February 26, 1953.
   Motion for reargument and to amend remittitur denied. [See 304 N. Y. 968.]


text:
    Capitol Piece Dye Works, Inc., Appellant, v. Klein Coat Corp., Respondent.
    Argued January 8, 1953;
    decided March 5, 1953.

      Maurice Leffert for appellant.

      Leo Fixler and Reuben Feinberg for respondent.
   Judgment of Appellate Division and order of Special Term reversed and motion denied, with costs in all courts. On this record there was presented a triable question of fact as to whether there was partial delivery and acceptance of the fabrics allegedly sold. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Myron Durling, Appellant.
    Argued February 26, 1953;
    decided March 5, 1953.

      Albert Averbach for appellant.

      Bradford F. Miller, District Attorney, for respondent.
   Per Curiam.

On the appeal from the judgment of manslaughter in the first degree, we stated: “We have examined the numerous errors assigned by defendant’s counsel, and find they are either without merit or without prejudice, save in one respect.” (People v. Durling, 303 N. Y. 382, 383.) That exception related to defendant’s motion, made on the day of sentence, under section 465 of the Code of Criminal Procedure, for a new trial on the asserted ground of misconduct of jurors and the trial court’s failure to deal properly with that application. We withheld determination of the appeal “ in order that defendant may promptly renew in the Seneca County Court his motion for a new trial, upon affidavits and notice to the District Attorney, but upon the ground solely of alleged misconduct of jurors, and so that the Seneca County Court may hold a hearing on that phase of the motion and render a decision thereon.” (P. 385.)

Such application has now been made, and, after a full hearing, denied. The Appellate Division has unanimously affirmed. Inasmuch as we find no abuse of discretion, we now affirm the judgment and order appealed from.

On appeal from the judgment of conviction: The judgment should be affirmed.

On appeal from the order denying a new trial: The order should be affirmed.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ., concur. Fuld, J., concurs for affirmance of the judgment appealed from but dissents, insofar as the court affirms the order of the Appellate Division affirming the order of the trial court denying defendant’s motion for a new trial under section 465 of the Code of Criminal Procedure, and votes to dismiss the appeal from said order upon the ground that — even under the peculiar circumstances of this case — this court lacks jurisdiction to entertain an appeal therefrom.

On appeal from judgment of conviction: Judgment affirmed.

On appeal from order denying new trial: Order affirmed.


text:
    Louis Angelina, Appellant, v. Euclid Concrete Corp. et al., Respondents.
    Submitted February 24, 1953;
    decided March 5, 1953.

      Maurice Finkelstein for motion.

      Harris Birnbaum opposed.
   Motion denied, with $10 costs.


text:
    Harold Black, Appellant, v. Vincent R. Impellitteri et al., Respondents.
    Submitted February 24, 1953;
    decided March 5, 1953.

      Denis M. Hurley, Corporation Counsel (Anthony Curreri of counsel), for motion.

      Emanuel Redfield opposed.
   Motion denied, with leave to renew upon the argument.


text:
    Erie County Water Authority, Respondent, v. Western New York Water Company et al., Appellants, et al., Defendants.
    Submitted February 24, 1953;
    decided March 5, 1953.

      Reid S. Moule for motion.

      Melvin L. Bong opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution and does not come within the provisions of subdivision 2 of section 589 of the Civil Practice Act.


text:
    Doris M. Ivory, Individually and as Treasurer of Association of Private Office Personnel Agencies, Appellant and Respondent, v. Edward W. Edwards et al., as Members of the State Commission Against Discrimination, Respondents and Appellants.
    Submitted March 2, 1953;
    decided March 5, 1953.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 304 N. Y. 949.]


text:
    Jamaica Water Supply Company, Appellant, v. City of New York, Respondent.
    Submitted February 24, 1953;
    decided March 5, 1953.
   Motion for reargument or for permission to amend the complaint denied. Motion to amend the remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States: Whether the facts alleged in the complaint are sufficient to establish prima facie that plaintiff has been deprived of any of the rights guaranteed by the Fourteenth Amendment of the Federal Constitution. The Court of Appeals held that the rights of the plaintiff under the Fourteenth Amendment of the Constitution of the United States had not been violated or denied. [See 304 N. Y. 917.]


text:
    Murray Landy, Appellant, v. Isabelle J. Landy, Respondent.
    Submitted January 5, 1953;
    decided March 5, 1953.

      Charles Rothenberg and Milton Koss for motion.

      Irving I. Erdheim, Robert F. Armstrong and Edward M. Chapian opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Compulsory Accounting of Anthony Bartoli, as Executor of Sarafina Bartoli, Deceased, Appellant. Eleanor B. Limata, Respondent; Eugene Bartoli, Appellant.
    Submitted February 24, 1953;
    decided March 5, 1953.

      Vito F. Lanza for motion.

      Philip Zichello opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution and, insofar as appellant Eugene Bartoli is concerned, upon the further ground that he is not a party aggrieved ” within the meaning of section 557 of the Civil Practice Act.


text:
    In the Matter of the Arbitration between E. Milius & Co., Inc., Respondent, and Regal Shirt Corp., Appellant.
    Submitted February 24, 1953;
    decided March 5, 1953.

      David Sklaire and Benjamin S. Kalnick for motion.

      Irving J. Seaver and Michael Feiring opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that an appeal lies as of right on giving a stipulation for order absolute.


text:
    In the Matter of the Claim of Benjamin W. Parker, Respondent, against United States Rubber Reclaiming Co., Appellant. Workmen’s Compensation Board, Respondent.
    Submitted February 24, 1953;
    decided March 5, 1953.

      Benedict T. Mangano for motion.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky and Boy Wiedersum of counsel), opposed.
   Motion dismissed, with $10 costs, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution. [See 305 N. Y. 694.]


text:
    In the Matter of the Port of New York Authority, Respondent, Relative to Acquiring Title to Real Property for the Third Tube and Additional Approaches and Connections of the Lincoln Tunnel, in the Borough of Manhattan. Rofar Realty Co., Inc., Appellant.
    Submitted February 24, 1953;
    decided March 5, 1953.

      Emily Marx for motion.

      Nathaniel Fensterstock and Sidney Goldstein opposed.
   Motion dismissed, with $10 costs, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution and does not come within the provisions of subdivision 2 of section 589 of the Civil Practice Act.


text:
    In the Matter of the Arbitration between Fred O. Schoeffer, Respondent, and Lowell Adams Factors Corp., Appellant. Fred O. Schoeffer, Respondent, v. Lowell Adams Factors Corp. et al., Appellants.
    Submitted January 12, 1953;
    decided March 5, 1953.

      Arthur B. Golwin for motion.

      Murray G. Spett, Samuel B. Budey and Lester Samuels opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the orders do not finally determine either the action or the special proceeding within the meaning of the Constitution.


text:
    John H. Nichols et al., Appellants, v. Item Publishers, Inc., Respondent.
    Submitted March 2, 1953;
    decided March 5, 1953.

      Joseph Beebaclc, and Bichará Brill for motion.

      Sydney Snitow opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless appellants serve and file an undertaking on appeal and pay $10 costs within ten days, in which events motion denied. [See 304 N. Y. 844.]


text:
    The People of the State of New York, Respondent, v. Walter Stein and Herman Stein, Appellants, et al., Defendants.
    Submitted February 24, 1953;
    decided March 5, 1953.
   Motion for reargument denied. [See 304 N. Y. 834.]


text:
    Charles E. Sickles, Appellant, v. Butler Paper New York Corp. et al., Respondents.
    Submitted February 24, 1953;
    decided March 5, 1953.

      Alexander T. Hussey, Karl 8. Beits and Warren I. Lee. for motion.

      Selig J. Levitan and Robert Zuckerman opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Ruth Starobin, Respondent, v. Max Miskowitz, Appellant.
    Submitted February 24, 1953;
    decided March 5, 1953.

      Samuel Zirn for motion.

      Louis R. Teig opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless appellant serves and files an undertaking on appeal, files the return and pays $10 costs within ten days, in which events motion denied.


text:
    Joseph Toeg, Respondent, v. Max Margolies, Appellant.
    Submitted February 24, 1953;
    decided March 5, 1953.

      Seymour J. Dgelow and A. Alfred Conrad for motions.

      Louis P. Goldberg opposed.
   Motions granted and appeals dismissed, with costs and $10 costs of motion, upon the ground that the orders do not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Samuel Lesser, Appellant.
    Submitted February 24, 1953;
    decided March 5, 1953.
   Application for reargument denied. [See 304 N. Y. 903.]


text:
    The People of the State of New York, Respondent, v. Irwin Slater, Defendant, and Bess Bernard, Appellant.
    Submitted February 24, 1953;
    decided March 5, 1953.
   Motion for reargument or for modification of sentence denied. [See 304 N. Y. 896.]


text:
    Bristol Paper Products, Inc., Appellant, v. Ameximpo, Inc., Respondent.
    Argued January 20, 1953;
    decided March 6, 1953.

      Samuel B. Waterman and Arnold E. Rosenblum for appellant.

      Frank G. Wittenberg for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughraw, Oh. J., Lewis, Cowway, Desmowd, Dye, Fitld and Froessel, JJ.


text:
    James P. Garippa, Respondent, v. Isidore Wisotsky et al., Appellants.
    Argued January 12, 1953;
    decided March 6, 1953.

      John F. X. Finn, William S. O’Connor, Archie B. Morrison and Robert A. Dwyer for appellants.

      Bernard Meyerson and Herman E. Hoberman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Oh. J., Lewis, Conway, Desmond, Dye, Fitld and Fboessel, JJ.


text:
    Edward Leone, as Administrator of the Estate of Carol Leone, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 30042.)
    Argued January 13, 1953;
    decided March 6, 1953.

      Bernard Meyerson and Joseph Pulvers for appellant.

      Nathaniel L. Goldstein, Attorney-General (William L. Shumate and Frederick M. Garfield of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Desmond, Dye, Fuld and Fboessel, JJ. Lewis and Conway, JJ., dissent and vote for reversal and a new trial upon the ground that the claimant’s evidence amounted to prima facie proof of the State’s negligence.


text:
    The People of the State of New York ex rel. Otto Goldman, Alias Dan A. Mitchell, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent. The People of the State of New York, Respondent.
    Argued January 15, 1953;
    decided March 6, 1953.

      Harry Gold for appellant.

      Nathaniel L. Goldstein, Attorney-General (Herman N. Harcourt and Wendell P. Brown of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Froessel. JJ.


text:
    Arthur S. MacGregor, as Executor of Gregor A. MacGregor, Deceased, and as Administrator D. B. N. of the Estate of Jeanie W. MacGregor, Deceased, Respondent, v. James C. Fox et al., Defendants. Thomas W. Snyder, an Infant, Appellant.
    Argued January 15, 1953;
    decided March 6, 1953.

      Walter J. Boyles and Herman Koenigsberg, guardian ad litem, for appellant.

      Edmund C. Donovan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of the Accounting of Guaranty Trust Company of New York, as Temporary Administrator and Executor of Ben Hillman, Deceased, Respondent. Francis J. Mulligan, as Public Administrator of the County of New York, et al., Appellants.
    Argued January 20, 1953;
    decided March 6, 1953.

      Joseph T. Arenson and Joseph A. Cox for Public Administrator of the County of New York, appellant.

      Lewis Abrahams, special guardian for Noel Stern, an infant residuary legatee, appellant in person.

      Andrew 7. Rogers, Milton A. Willment, Jr., Walter D. Fletcher and J. Dormer Gannon for respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway and Dye, JJ.; Desmond, Fuld and Feoessel, JJ., dissent and vote to reverse , on the opinion of the Surrogate. [See 305 N. Y. 797.]


text:
    In the Matter of Coplin Yaras, Respondent. City of Albany, Appellant.
    Argued January 15, 1953;
    decided March 6, 1953.

      Russell Q. Hunt, Corporation Counsel (Samuel Jacobs of counsel), for appellant.

      Ernest B. Morris for respondent.
   Appeal dismissed, with costs, upon the ground that there are questions involved other than the validity of a statutory provision under the State or the Federal Constitution (N. Y. Const., art. VI, § 7, subd. [2]; Civ. Prac. Act, § 588, subd. 4). No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of 1070 Park Avenue Corporation et al., Appellants, against Joseph D. McGoldrick, as State Rent Administrator, et al., Respondents.
    Argued January 19, 1953;
    decided March 6, 1953.

      Robert S. Fougner for 1070 Park Avenue Corporation and others, appellants.

      Beatrice Shainswit and Robert B. Schaffer for Joseph D. McGoldrick, as State Bent Administrator, respondent.

      Julius R. Oltarsh3 in person, and David M. Palley for Julius R. Oltarsh and others, respondents.
   Order affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of the Claim of Gladys Gardner, Respondent, against New York Medical College et al, Appellants. Workmen’s Compensation Board, Respondent.
    Argued January 20, 1953;
    decided March 6, 1953,

      F. Walter Bliss and Earl PL. Gallup, Jr., for appellants.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs to the Workmen’s Compensation Board; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Feoessel, JJ.


text:
    In the Matter of the Estate of Relious Vaughan, Deceased. Mae Vaughan, Appellant; Elwood D. Vaughan, Respondent.
    Argued January 8, 1953;
    decided March 6, 1953.

      Charles L. Kellar for appellant.

      Oliver D. Williams and Henry Pleus for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lewis, Conway, Dye and Frobssel, JJ. Lotjghran, Ch. J., Desmond and Fuld, JJ., dissent upon the ground that there is no evidence to establish that there was a common-law marriage.


text:
    Albert Piragnoli, as Administrator of the Estate of Erminia Piragnoli, Deceased, Appellant, v. State of New York, Respondent. Albert Piragnoli, Appellant, v. State of New York, Respondent.
    (Claim No. 30059.)
    (Claim No. 30202.)
    Argued January 13, 1953;
    decided March 6, 1953.

      Samuel L. Greenberg, Abraham Frankel and Emanuel Greenberg for appellant.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison and Wendell P. Brown of counsel), for respondent.
   Judgments affirmed, without costs; no opinion.

Concur: Loxxghran, Ch. J., Lewis, Coxway, Desmond, Dye, Fuld and Fboesseij, JJ.


text:
    In the Matter of the Arbitration between Compagnie Francaise des Petroles, Respondent, and Pantepec Oil Company, C. A., Appellant.
    Argued January 14, 1953;
    decided March 6, 1953.

      William Shields, Jr., and Mahlon B. Doing for appellant. Edward J. McQratty, Jr., and Charles N. Lowrie, Jr., for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Trans America Development Corporation, Appellant, v. Adolf Leon, Respondent.
    Argued January 16, 1953;
    decided March 6, 1953.

      Alan F. McHenry and J. Harlin O’Connell for appellant.

      David Teitelbaum and Burr F. Coleman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Ftjud and Feoessel, JJ.


text:
    The People of the State of New York ex rel. Lexington House, Inc., Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued January 20, 1953;
    decided March 6, 1953.

      Alfred H. Hetlcin for appellant.

      Denis M. Hurley, Corporation Counsel (James J. McGowan and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Field and Froessel, JJ.


text:
    Elsie Rappaport, Respondent, v. Phil Gottlieb-Sattler, Inc., et al., Appellants, et al., Defendants. Phil Gottlieb-Sattler, Inc., Defendant and Third-Party Plaintiff, v. Sidney Kissin et al., Copartners Doing Business under the Name of Kissin Bros. Parcel Service, Third-Party Defendant.
    Argued January 12, 1953;
    decided March 6, 1953.

      Paul D. Compton and Norman 8. Rein for appellants.

      Emmet L. Holbrook and Joseph Haskell for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Coca-Cola Bottling Company of New York, Inc., Appellant and Respondent, v. John Vanneck et al., Respondents and Appellants.
    Argued January 20, 1953;
    decided March 6, 1953.

      Harold H. Levin for appellant-respondent.

      Percival E. Jackson and Theodore N. Tarlau for respondents-appellants.
   Judgment affirmed, -without costs; no opinion.

Concur: Lottghran, Ch. J„, Lewis, Conway, Dye, Fuld and Froessel, JJ. Desmond, J., dissents on the opinion of the Trial Justice.


text:
    Edwin R. La Vin, Appellant and Respondent, v. Russell C. La Vin et al., Respondents and Appellants.
    Argued January 8, 1953;
    decided March 6, 1953.

      Meyer Kraushaar for appellant-respondent.

      Leo E. Sherman for respondents-appellants.
   Judgment affirmed, without costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ. Taking no part: Froessel, J.


text:
    Shirley Mason, Respondent, v. Lory Dress Co., Inc., Appellant, et al., Defendants.
    Argued January 15, 1953;
    decided March 6, 1953.

      David B. Friedland for appellant.

      Emanuel Bedfield and Abraham V. Kaplan for respondent.
   Judgment affirmed, with costs; ho opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Frobssel, JJ.


text:
    In the Matter of Flo Inn, Inc., Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants.
    Argued January 19, 1953;
    decided March 6, 1953.

      Alvin McKinley Sylvester, Counsel (Robert Corcoran and Emanuel D. Black of counsel), for appellants.

      Jacob M. Mandelbaum and William P. Thomas for respondent.
   Order of Appellate Division, insofar as it annuls the determination of the State Liquor Authority as to charge No. 3, modified, and, as so modified, affirmed, without costs, and matter remitted to the Authority for reconsideration of the penalty. There was evidence to support said charge No. 3 and the finding by the Authority that respondent failed to keep adequate books and records. No opinion.

Concur: Lotjghran, Ch. J., Desmond, Dye and Fuld, JJ. Lewis, Conway and Froessel, JJ., dissent and vote to affirm.


text:
    In the Matter of the Accounting of Bank of New York and Fifth Avenue Bank et al., as Trustees of a Trust Made with Jean L. Matthews, Appellant and Respondent. Mark S. Matthews, Respondent and Appellant; Aaron Marcus, Guardian ad Litem for George G. Matthews and Others, Infants, Appellant and Respondent.
    Argued January 14, 1953;
    decided March 6, 1953.

      Edward 8. Bentley for Bank of New York, appellant-respondent.

      Edward Pious and Aaron Marcus, in person, for Aaron Marcus, guardian ad litem for George G. Matthews and others, appellant-respondent.

      William PL. Matthews, Jr., and Robert W. Knox for respondent-appellant.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the trust; no opinion.

Concur: Loughban, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Janet W. Levy, Respondent, v. 1165 Park Avenue Corporation, Appellant.
    Argued January 19, 1953;
    decided March 6, 1953.

      Robert 8. Fougner for appellant.

      Eugene J. Morris and Norman Sternlieb for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghban, Ch. J., Lewis, Conway, Desmond, Dye, Tuld and Fboessel, JJ.


text:
    Mary E. Lynch, Individually and as Executrix of Catherine E. Mulligan, Deceased, Appellant, v. Jerry Boutin, Respondent. (Two Cases.)
    Submitted January 20, 1953;
    decided March 6, 1953.

      William M. Kileullen for appellant.

      I. William Garfield for respondent.
   Judgment affirmed, without costs. Plaintiff’s appeal from the order of the Appellate Division affirming the order of the Special Term denying injunctive relief dismissed. (See, e.g., Evadan Realty Gorp. v. Patterson, 297 N. Y. 732.) No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Harold Fein et al., Appellants, v. Board of Education of the City of New York, Respondent.
    Argued January 13, 1953;
    decided March 6, 1953.

      Bernard Meyerson and Esther B. Brause for appellants.

      Denis M. Hurley, Corporation Counsel (Edward J. McLaughlin and Seymour B. Quel of counsel), for respondent.
   Per Curiam.

In submitting the case to the jury, the trial court charged that it might return a verdict in favor of plaintiffs if it found that defendant failed either (1) to furnish adequate supervision, or (2) to provide a mat underneath the chinning bar. The jury returned a verdict for plaintiff; the court set it aside and dismissed the complaint and the Appellate Division affirmed that disposition.

Although the court was correct in its final decision that the case should not have been submitted to the jury on the first ground, it erred in dismissing the complaint since there was evidence to support the verdict on the second ground. Accordingly, the judgments may not stand. Since, however, no one can know or say on which ground the jury arrived at its verdict, there must be a new trial. (See Clark v. Board of Educ. of City of N. Y., 304 N. Y. 488, 490; Phillipson v. Ninno, 233 N. Y. 223, 226.)

The judgments should be reversed and a new trial granted, with costs to abide the event.

Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgments reversed, etc.


text:
    The People of the State of New York ex rel. New York Central Railroad Company, Appellant and Respondent, against Mark Graves et al., Constituting the State Tax Commission, Respondents and Appellants, and City of New York, Intervener, Appellant and Respondent.
    Argued January 8, 1953;
    decided March 6, 1953.

      William R. Stevens and Gerald E. Dwyer for appellant-respondent.

      Nathaniel L. Goldstein, Attorney-General (Edward J. Grogan, Jr., and Wendell P. Brown of counsel), for respondents-appellants.

      Denis M. Hurley, Corporation Counsel (Timothy F. Cohan of counsel), for intervener-respondent-appellant.
   Order affirmed, without costs; no opinion;.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Chester E. Smith, Doing Business under the Name of Riverview Motors, Appellant, v. Parr Motor Sales, Inc., Respondent.
    Argued January 9, 1953;
    decided March 6, 1953.

      Louis H. Starikov and John D. O’Loughlin for appellant.

      Henry Grusky for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.