author: Finch, J.

text:
    The People of the State of New York, Respondent, v. James J. Hines, Appellant.

      Argued June 3, 1940;
    decided October 8, 1940.

      Martin W. Littleton, Irving Goldberg and Richard H. Brown for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld, Burr F. Coleman and Whitman Knapp of counsel), for respondent.
   Finch, J.

After a trial in General Sessions defendant was found guilty by the jury upon all counts of the indictment. Of these the first count charged a conspiracy to contrive, propose and conduct lotteries known as the “ numbers game ” and policy,” and the remaining twelve counts charged separate substantive crimes, each consisting of taking part in contriving, proposing or drawing a lottery known as the numbers game ” and “ policy ” in violation of the Penal Law (§ 1372).

Upon appeal to the Appellate Division, that court unanimously affirmed the judgment of conviction.

As the facts found present a background against which the questions of law are to be considered, we note the opening paragraph in the opinion of the Appellate Division: The concession of appellant’s counsel that unquestionably, the testimony was sufficient prima facie to establish that appellant was a member of the conspiracy to commit the crimes charged, as alleged in the indictment,’ renders unnecessary any extended review of the evidence. Indeed, an examination of the record and briefs leads to the conclusion that it would have been futile for counsel otherwise to contend. Questions of law only, therefore, need be considered.” (258 App. Div. 466, 467.)

Let us examine what facts the evidence was sufficient to establish, so that counsel for defendant was forced to say “ unquestionably the testimony was sufficient * *

For the purposes of this appeal, therefore, we must assume that the evidence is sufficient to establish the following:

Briefly, in 1931, the notorious Dutch Schultz with a group of associates formed a combination to gain control of and operate various policy enterprises. By 1932 this combination had consolidated these enterprises into a business which operated a daily drawing, except Saturdays and Sundays, clearing an annual income of hundreds of thousands of dollars. Specifically, when the daily net intake had grown to $45,000 by the fall of 1932, the leaders still were not satisfied, and contrived a scheme whereby the profits might be still further increased through a rigging of the pari-mutuel figures on which the pay-offs were based. Therefore, the combination paid an individual $10,000 a week to manipulate the odds on the last race in such a way as to prevent an honest pay-off when too many players had chosen a legitimate number. As the combination increased and became more centralized, its operations became more vulnerable to attack by honest law enforcement authorities. It became essential to the continued growth and profits to have someone as a member of the gang who could as far as possible furnish protection from arrest and, if arrested, immunity from conviction. Appellant was taken in for this purpose and was paid $500 to $1,000 a week over the period from 1932 to about October, 1936, with a cut in the weekly salary in 1935 to $250 to $500 together with incidentals such as some $30,000 to help elect a District Attorney named by appellant. In brief, the method employed was to obviate arrests by obtaining the transfer to other portions of the city of the police officers who were efficiently performing their duty in enforcing the criminal law, and arranging with magistrates for dismissals when arrests were _ made. Appellant also took part in opening central headquarters for the combination which under the direction of Dutch Schultz were not to be opened without his approval. He also sought to arrange the removal of the banks of the combination from New York to Mt. Vernon. He took part in selecting and financing the campaign of the successful candidate elected to the office of District Attorney, and thereafter used his influence to prevent serious investigation by such office into his own activities and the activities of those associated with him in the conspiracy. As found by the jury and as stated in the brief of appellant: After he [appellant] was hired, as aforementioned, appellant allegedly used his political influence on behalf of Schultz and his associates whenever called upon to do so. From time to time, various police officers who had molested or threatened to arrest or molest members of the Dutch Schultz gang, were transferred to other precincts, presumably through appellant’s efforts or influence. On one occasion, according to Weinberg’s testimony, appellant, at Weinberg’s request, communicated with a Magistrate and induced him to dismiss policy charges pending before him against employees of the combination who had been arrested by the police (fols. 2546, 4917). On another occasion, upon a similar request from Davis, appellant allegedly used bis influence with another Magistrate for a similar purpose (fol. 4896). Other testimony was introduced tending to show that appellant interceded with other officials, on behalf of Schultz and his associates (fols. 5027-5030).,

The work of appellant in preventing arrests and obtaining immunity from conviction was most successful. In order not to lengthen unduly this opinion, it may be said that here was a well-organized business, successful in effective corruption of police and magistrates and in the destruction of public confidence in the orderly processes of justice in a democracy. Facts in detail supporting conclusory statements herein are available in. the record.

Are there any questions of law which compel us to nullify the judgment of conviction as supported by the facts as found? Even if technical errors exist, they must be disregarded and the judgment of conviction affirmed unless a substantial right of appellant would be thereby prejudiced. (Code Crim. Proc. § 542.)

We take up the alleged errors seriatim in the order set forth in the brief of appellant.

Appellant contends that the offenses of which he stands convicted, namely, contriving, proposing or drawing a lottery, or assisting in contrivmg, proposing or drawing a lottery, because they relate to policy, are not punishable under the provision of the Penal Law relating to lotteries. In other words, the contention of appellant is that policy is not a lottery.

The answer to this contention is two-fold. The express language of the Penal Law is concededly broad enough to cover policy. (§ 1370.) Second, that policy is a lottery has been so held not only by this court but by the courts of every other jurisdiction which have been called upon to decide the question. As was said in the highest court of Virginia recently (Abdella v. Commonwealth, [Va. 1939] 5 S. E. Rep. [2d] 495): that it [policy] is a lottery is nowhere questioned.”

A lottery is defined in section 1370 of the Penal Law as follows: " A scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise or by some other name.”

This is general language comprising every form of lottery of which there have been many forms in the past and will be many forms in the future. Every year human ingenuity is expended in inventing a new form, but in each the fundamental principle is the same, namely, a scheme for the distribution of property in which a valuable consideration is paid on chance alone, with no admixture of skill. It cannot be successfully contended that there arises a need to draw a new statute every time a new device arises for the creation of a lottery. Every scheme for a distribution of property by chance among those who have paid a valuable consideration, is covered by the comprehensive definition in section 1370 of the Penal Law. In the language of the definition of a lottery in the Penal Law there is no reference to specific property. Money is property, and the language of section 1370 of the Penal Law and its predecessor has received the broadest interpretation. The sale of a piece of chewing gum for a penny, which secured a chance to draw a prize in value according to the number on the package constitutes a lottery * * *.” (People v. Miller, 271 N. Y. 44, 47.) Policy is merely another form of such a scheme. Policy as conducted by the combination was a scheme of chance in which the player selected a number containing three figures. That number was written on a slip of paper which was given with the amount bet, to a so-called collector. The winning number was determined each day by chance, generally, in the case at bar, by a computation based upon the moneys paid on the result of horse races at a designated track, subject to the rigging of the last number as above noted. If a player succeeded in picking the winning number, he was paid six hundred times the amount of the bet, otherwise nothing. That such a scheme falls within the above quoted definition of a lottery, finds support if support be needed, in the decision of the courts of this State (Wilkinson v. Gill, 74 N. Y. 63), and of the courts of every other jurisdiction that has considered whether policy is a lottery. (Forte v. United States, [Ct. of App. Dist. Col. 1936] 83 Fed. Rep. [2d] 612; Reilley v. United States, [C. C. A. 6th Cir. 1901] 106 Fed. Rep. 896; revd., sub nom. Francis v. United States, on other grounds, [1903] 188 U. S. 375; Thomas v. State, [1903] 118 Ga. 774; State ex rel. Kellogg v. Kansas Mercantile Assn., [1891] 45 Kan. 351; Commonwealth v. Sullivan, [1888] 146 Mass. 142; Commonwealth v. Wright, [1884] 137 Mass. 250; People v. Hess, [1891] 85 Mich. 128; People v. Elliott, [1889] 74 Mich. 264; State v. Hilton, [1913] 248 Mo. 522; State v. Harmon, [1894] 60 Mo. App. 48; State v. Martin, [1896] 68 N. H. 463; Dombrowski v. State, [1933] 111 N. J. L. 546; Commonwealth v. Chirico, [1935] 117 Pa. Super. Ct. 199; Commonwealth v. Banks, [1930] 98 Pa. Super. Ct. 432; Abdella v. Commonwealth, [Va. 1939] 5 S. E. Rep. [2d] 495.)

Wilkinson v. Gill (74 N. Y. 63) was a civil action for the recovery of a penalty under a statute permitting such recovery by “ any person who shall purchase * * * ticket * * * in any portion of any illegal lottery (now Penal Law, § 1383). The trial court charged as a matter of law that playing “ policy ” was the purchase of an interest in a lottery, and this court, in affirming, held that “ policy ” did constitute a lottery. The provision of the Revised Statutes then under consideration by the court has now been incorporated without substantial change as section 1383 of the Penal Law. That section and section 1372 involved herein, are both parts of the same article of the Penal Law (130). In consequence the meaning of the word “ lottery ”■ as used in each is controlled by the general definition found in the same article (§ 1370). The contention of defendant, that the word “ lottery may have a different meaning in each section because section 1383 provides a civil remedy and section 1372 a criminal provision, is without merit, for the word lottery ” has the same meaning in each section in accordance with the definition in the same article (130). The opinion in Wilkinson v. Gill (supra) states: “ The question is therefore presented, whether the ‘ policy ’ transactions were within the statute. The statute is very broad and comprehensive. * * * ” The court then goes on to define the word lottery ” and says: “ The word ‘ lottery ’ has no technical legal meaning. It must be construed in the popular sense, and with a view of remedying the mischief intended to be prevented. * * * Worcester defines ‘ lottery ’ as ‘ a hazard in which sums are ventured for a chance of obtaining a greater value.’ The language of Folger, J., in [Hull v. Ruggles] 56 N. Y. 424, may be adopted as a result of the accepted definitions. Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out by the public, what and how much he who pays the money is to have for it, that is a lottery ’ ” (p. 66).

It is submitted that a reading of this opinion confirms a reading of the language of the section itself.

An example or two from the opinions in other States (and in several of them the statute is identical with our own) shows the clear-cut line of reasoning. In Commonwealth v. Wright (137 Mass. 250, 251) the court in an opinion written by Mr. Justice Holmes said: We cannot say, as matter of law, that the facts that the prize was money and not specific, and that more than one could select the same number with the same result, prevented the game from being a lottery. It is a lottery according to the popular use of the word as shown by the dictionaries, according to history, to which lotteries with money prizes not specific have long been known, and according to the course of the decisions.”

In another example from the United States courts, where the sole contention of the defendant was that he could not be prosecuted for selling lottery tickets because policy was not a lottery, the court said:

“It is further contended that the numbers game is not a lottery because there must be a physical drawing of the certificate or ticket. One of the essential elements of a lottery is the awarding of a prize by chance, but the exact method adopted for the application of chance to the distribution of prizes is immaterial. * * *
“ The policy game is undoubtedly a lottery * * (Forte v. United States, 83 Fed. Rep. [2d] 612, 615.)

It cannot be successfully contended, because the lottery laws were enacted before the game of policy came into being, that, therefore, there may be no prosecution of policy under the lottery statute. Otherwise, as already noted, it would follow that it would be necessary to re-enact over again the same comprehensive statute every time fresh ingenuity invented a scheme to distribute by chance a much greater value in return for the purchase of a chance for an inconsiderable sum.

We reject also the contention that the later enactment of the various provisions of the Penal Law dealing with specific incidents of the game of policy other than the actual running of the game by the insiders, prevents a prosecution of defendant as one of the principal participants. That the little storekeeper who receives a small compensation for permitting his store to be used as a place where a deposit may be made of the slips, or the collector whose only duty is to make collections and carry these slips from the places of deposit to the local or central office, should receive the same punishment as such a principal as the defendant contains an element of unfairness. A consideration of the statutes dealing with the subject and other history shows that, while those who contrived, proposed or drew a lottery, or assisted in so doing, are guilty of a felony under section 1372 of the Penal Law, sections 970 and 974, which do not deal with such activities but define certain of the minor offenses peculiar to policy, provide, in their present form, a lesser penalty for the lesser offense. Section 970 prohibits a person from selling a lottery policy or any paper equivalent thereto. Section 974 prohibits one from keeping an establishment for policy playing, from delivering or receiving money by playing policy, or possessing policy slips, or other articles used in carrying on policy, or owning or being the agent or janitor of any establishment where lottery policies are sold.

Also the principle is applicable that the State may proceed under a general statute even though a more specific one is available. A specific statute does not necessarily replace a more general statute, and does not become the exclusive method of prosecution. Authorities in this State and elsewhere confirm this principle. In People v. Bord (243 N. Y. 595) defendant urged that the existence of a specific statute covering the exact act with which he was charged prevented a prosecution for the felony under the more general statute. This court rejected that argument.

In Wilkinson v. Gill (74 N. Y. 63) it was likewise contended by the defendant that the enactment of laws defining more specifically various phases of policy playing prevented the application of the lottery statutes to policy. In overruling that argument this court said: “It is claimed that the act of 1851 (Chap. 504), is a legislative construction that ‘ policy ’ is not a lottery. This act makes it a criminal offense for selling lottery policies, or any writing in the nature of ‘ bet, wager, or insurance upon the drawing or drawn numbers of any public or private lottery.’ It may be that the defendant was liable under this statute, although in fact no policy or writing of any kind was issued dr delivered, but I am at a loss to see upon what principle this act can be held to limit or restrict the meaning of the» word lottery in the section under which this action waS-brought. The particular acts which the defendant may have done in pursuing the lottery business, are perhaps described with more precision than in the section in controversy; but this cannot impair the meaning of the section as it stands. That section is general, but very comprehensive, and although the particular device adopted by the defendant may not then have been practiced, yet if its comprehensive terms embraced it, the subsequent passage of an act making such device criminal cannot affect its provisions.” .

Cases from other States and from the United States courts are to the same effect. (State v. Little, [Mo. 1933] 60 S. W. Rep. [2d] 83; Goode v. United States, 159 U. S. 663; Bingham v. State, 44 Okla. Crim. Rep. 258; People v. Singer, 288 Ill. 113; Bonahoon v. State, 203 Ind. 51).

The cases cited by defendant, such as People v. Bloom (248 N. Y. 582) and similar cases, are not in point. These decisions do not deal with the question of whether policy is a lottery. They involve only the problem of whether lotteries other than policy may be prosecuted under section 974, which relates solely to policy. Obviously, since lottery is the general term and policy the specific one, every policy is a lottery; but the converse does not follow, and not every lottery is policy. Consequently these cases are not in point.

Appellant urges as his second objection that the proof fails to establish that appellant assisted in contriving, proposing or drawing a lottery. It is difficult to understand this contention since the jury has found upon ample evidence, and the concession agrees, concerning the membership and participation in the conspiracy by appellant. To support this contention defendant seeks to interpret the words contrives, proposes or draws a lottery, or assists in contriving, proposing or drawing the same in so narrow a sense that he insists that it was necessary to prove his direct or physical participation in the actual drawing of the lottery. In so urging defendant ignores the fact that his confederates performed the very acts prohibited by section 1372, and that by virtue of the indispensable aid that he rendered in the commission of these crimes, he is himself a principal under the provisions of the Penal Law (§ 2).

In addition, article 130 of the Penal Law constitutes a comprehensive and integrated plan for the suppression of lotteries. After the definition of a lottery, as heretofore set forth, section 1372 holds those master minds guilty of a felony who contrive the scheme, set it up and conduct the same within this State. The meaning of the words to open, set on foot, carry on, promote, or draw a lottery, is indicated by the legislative history of this section. Its earliest forerunner was enacted in 1819 (Laws of 1819, ch. 206, § 2): “ That no person or persons shall, within this state, open, set on foot, carry on, promote, draw, or make publicly or privately, any lottery * * This provision was

incorporated as it existed into the Revised Statutes but with minor changes (1 Rev. Stat. p. 665, § 27). The present words first appeared in the draft of the Penal Code prepared by the commissioners chosen for that purpose in 1865, and became a part of the Penal Code (§ 325) in 1881 (Laws of 1881, ch. 676). From this legislative history it would seem a reasonable inference that the verbiage to-day was intended to be synonymous with the words “ open, set on foot, carry on, promote [or] draw,” found in the earlier statutes. For these master minds the Legislature left the penalty of a felony. For the various accessory incidents of a lottery, the Legislature provided punishment as misdemeanors; as for example the letting of premises for lottery purposes (§ 1381), the keeping of a lottery office (§ 1377), the advertising of lottery (§ 1374), and the selling of lottery tickets (§ 1373).

In urging his contention defendant fails to distinguish between a case where the only connection of a person with a lottery begins and ends with his performance of incidental acts specified in the particular sections above, and a case where such person performs acts in deliberate co-operation with those conducting and managing the lottery enterprise itself. (Cf. Commonwealth v. Harris, 95 Mass. 534; State v. Wong Took, 147 Wash. 190.) From the activities of defendant set forth above, it is impossible to see how he could have been more directly connected with the enterprise. Even assuming that appellant did not physically “ contrive, propose or draw a lottery,” nevertheless those with whom he had confederated and with whom he was acting in concert, to wit, Schultz and his henchmen, were plainly engaged in the physical administration and operation of a lottery. Since some of the members of the combination were engaged in the physical task of drawing and selecting the winning numbers, it follows that the conspiracy necessarily involved the commission of the crimes denounced by section 1372 of the Penal Law. The sole remaining question, therefore, relates to the participation of appellant therein, which would seem to be completely answered by the concession of defendant that the evidence established membership in the conspiracy to commit the crimes charged in the indictment. Defendant was charged and found guilty of the acts of affording protection from arrest and, if arrested, immunity from conviction. Hence, he was an indispensable cog in the inside running of this enterprise, or he was nothing. As the Appellate Division noted, the proof was to the effect that the policy game “ could not have been carried on without such protection.” To urge that one who provided such protection performs just another incidental act similar to the letting of premises for lottery purposes or the collecting of policy slips and carrying them from one destination to another, is to lose sight of the distinction noted above between the connection with the lottery which begins and ends with the incidental act, and where such act is in deliberate co-operation with those conducting and managing the lottery enterprise itself. In other words, while a person who sells to another $10,000 worth of tickets daily may be guilty of a misdemeanor under section 1373, in selling lottery tickets, he may also be charged with violating section 1372 if the jury finds that he has acted in concert and co-operation with the persons who contrived, proposed or drew the lottery. So in the case at bar appellant could unquestionably have been prosecuted for conspiracy to obstruct justice. But his guilt of that crime would afford him no defense when prosecuted for violating section 1372 in view of the fact that he was a member of the conspiracy to commit the crimes charged in the indictment, and was deliberately acting in concert with those operating and conducting the lottery. Where the line would be drawn between acts which were only incidental and those which were deliberate co-operation with those conducting and managing the lottery enterprise and for the specific purpose of furthering the aims and objects of that enterprise, would be in each instance a question to be determined in the particular case. The proof of the conscious participation by defendant in the criminal enterprise of the combination, even apart from his concession, conclusively establishes him as a principal in each of the substantive crimes committed in furtherance of the conspiracy. As the violation of section 1372 was a daily activity of the combination, appellant was properly convicted of the crimes charged in the indictment.

Appellant urges as his third point that prejudicial error was committed by the trial court because there was received in evidence the testimony adduced before certain magistrates upon the hearing of certain charges against employees of the combination, and in the alleged submitting to the jury for determination as a question of fact whether the magistrates were right or wrong in dismissing the charges.

As already noted, the evidence is sufficient to establish that the principal function of appellant in the conspiracy was to protect from arrest and prosecution those engaged in the combination, except the small fry, and to enhance its prestige thereby. In general appellant was able to do this by exercising' his influence with the Police Department. On three occasions, however, the police arrested important members of the combination, and appellant was forced to use the services of two magistrates to secure immunity from conviction. Davis and Weinberg, both participants' in thie combination, testified that they had spoken about these three cases to appellant, and that he had each time indicated that they would be thrown out in the Magistrate’s Court. There is evidence that the two magistrates agreed to and did conduct hearings in cases brought against members of the combination, and agreed to and did discharge prisoners brought before them in spite of what appears to be conclusive evidence of guilt. The minutes of those proceedings in the Magistrate’s Court were introduced by the People upon the present trial. It is urged by defendant that it was error to admit these records upon the ground that they constituted hearsay evidence and thus violated the right of defendant to be confronted with the witnesses who had testified before the magistrates; and further, that these records at best showed only that the magistrates had erred in dismissing the cases. Neither of these objections is valid. In the first place the records were not introduced to establish the truth of the facts therein. There was no such issue before the jury. It follows that the hearsay rule was not involved. (6 Wigmore on Evidence [3d ed.], § 1766.) The minutes were not introduced for the purpose of showing that the magistrates had committed mere judicial error upon the record alone. On the contrary, the circumstances which the minutes disclosed, namely, the nature of the proof before the magistrates, their alleged disregard of the evidence and the law, their contrasting treatment of the witnesses for the two sides, and in short, their general attitude and demeanor in conducting the proceedings, all were evidence supporting other proof of an outside corrupting influence. From this evidence a jury was to find, and was so instructed by the court, whether the magistrates had dismissed the cases upon the basis of their own judgment or as a result of some outside corrupting influence. Thus the records of the Magistrate’s Court constituted an integral and proper part of the proof of the People and the evidence was competent to corroborate the testimony of Davis that appellant had made the agreement with the magistrates. In the case at bar, as already noted, there was ample evidence in this record bearing on whether or not the magistrates were acting pursuant to the agreement which was made with appellant, and, therefore, corroborating the existence of the agreement. In People v. O’ Neil (48 Hun, 36; affd., 109 N. Y. 251) it was held that “ * * * from subsequent action the jury has the right to infer the existence of a pre-existing fact. * * * So in the case at bar, for the purpose of showing the previous agreement in reference to the subject-matter of this indictment, the people had a right to show the subsequent action of the defendant and his accomplices, which was consistent with the existence of the previous agreement, and from which the previous agreement might be inferred * * * ” (p. 41). This court, in approving the introduction of the subsequent proceedings before the Board of Aldermen, pointed out: They threw light upon the prior conduct of the defendant, and tended to confirm the evidence of the accomplices, and to show that the defendant’s vote on the thirtieth of August, was in fulfillment of the corrupt agreement charged in the indictment ” (p. 265).

So in the present case, the minutes of the hearing tended to confirm the evidence of the accomplices and to show that the dismissals were in fulfillment of the corrupt agreement made between appellant and the magistrates.

The next claim of defendant is that the court submitted to the jury as a question of fact whether the magistrates were right or wrong in dismissing the charges. The trial court was most careful to point out that the only importance of the introduction of these minutes was as they bore on the guilt of defendant. The court said: “ We are not trying the magistrate; we are trying the defendant. * * * on the other hand if you assume that the judges, the magistrates were entirely wrong, not only in their decision, but wilfully so, if the defendant did not secure that wilful misconduct, he is not chargeable. The whole thing is whether he endeavored to influence them and did influence them to turn those cases out.” Again the court said: “ Therefore, as I say, it has that evidentiary value, but you must keep in mind, after all, the question is whether the defendant procured or endeavored to procure a wrong decision there rather than whether the magistrates made it.”

We next take up the contention of the appellant that the first count of the indictment charging a conspiracy is insufficient upon the face thereof for failure to allege a complete crime of conspiracy which has not been barred by the Statute of Limitations. This objection is addressed solely to the propriety of the conspiracy conviction. As already set forth, appellant was tried and convicted upon an indictment containing thirteen counts of which only the first was for conspiracy, which was a misdemeanor, the remaining twelve counts each alleging a substantive crime which was a felony. The sentence on the conspiracy count for a misdemeanor was suspended. The sentence of imprisonment was solely upon the felony counts. Even if the indictment had not contained a count for conspiracy, the People would have been entitled to a charge that the jury must decide whether the defendant and others with him had been engaged in a conspiracy and had, pursuant to the scheme, performed acts and aided, abetted or otherwise assisted, in the commission of the felonies charged. In other words, all of the evidence adduced in this case is relevant to, and bears upon the twelve substantive counts charged in the indictment. (People v. Crossman, 241 N. Y. 138; People v. Luciano, 277 N. Y. 348.) It follows that any error found in the allegation of the conspiracy count in the indictment furnishes no reason for interfering in any manner with the sentence arising out of the felony counts.

We are brought then to an examination of the conspiracy count which is directed only to the formal sufficiency of that count upon the face thereof and not to the introduction upon the trial of the matter relating to the conspiracy and the participation of appellant therein. This count specifically charges that this conspiracy continued from March, 1931, through January 13, 1937. The indictment was filed May 26, 1938. There is also evidence by at least two witnesses that payment of defendant was continued for seven or eight payments in the year 1936 at the rate of $1,000 a month. Appellant contends that under the provisions of the Penal Law (§ 583) and the Code of Criminal Procedure (§§ 398, 142) this conspiracy count is invalid on its face. The doubt that may have existed at common law has long since been dispelled by the statutory provisions in our laws that except in connection with the commission of certain crimes, not here material, an overt act is an essential ingredient of the crime of conspiracy. ..(Penal Law, §. 583.)' Whatever the relative weight of the unlawful agreement and of the overt act as necessary pnr.ts of the crime, the latter is a required element. Since no agreement to commit a crime amounts to a conspiracy unless some act be done to effect the object thereof, the crime is not complete until the doing of the overt act. Thus, the commission of the crime depends for its validity upon the overt act and the unlawful agreement or combination without the overt act is insufficient to constitute the crime. Since an indictment must allege a plain and concise statement of the act constituting the crime (Code Crim. Proc. § 275), which has not been barred by the running of the Statute of Limitations, it follows that an indictment for conspiracy must contain an allegation of an overt act within the period of limitations. The crime of conspiracy being a misdemeanor, the applicable period of limitations is two years. (Code Crim. Proc. § 142.) Although the first count alleges some fifteen overt acts, none is alleged within two years of the filing of the indictment. Therefore, regardless of proof of overt acts upon the trial, the defendant was entitled to have the indictment in this count allege a crime for which he could be prosecuted. Unlike a Statute of Limitations in a civil case, such a statute in a criminal case creates a bar to prosecution and the time within which an offense is committed becomes a jurisdictional fact which the State must allege and prove. . (1 Wharton on Criminal Evidence [11th ed.], § 198.)

The respondent urges that the Code of Criminal Procedure permits the allegation of an overt act antedating the statutory period of limitation and then giving proof at the trial of any other overt act. (Code Crim. Proc. § 398.) Since there can be no valid basis for a charge of conspiracy unless an overt act be done to effect the object thereof, the law necessarily implies that such an act must be done within the running of the statutory period of limitations. Moreover, under the plain language of the Code of Criminal Procedure (§ 398) a defendant can be convicted upon proof of one or more overt acts alleged in the indictment. Obviously, therefore, at least one of the overt acts alleged in the indictment must be within the period of limitations. Otherwise, if all of the overt acts alleged in the indictment were already barred by the Statute of Limitations, the crime could not be established except by proof of one or more of those barred acts. Therefore, regardless of the proof of overt acts upon the trial, the first count must be dismissed for insufficiency upon the face thereof^and no prosecution and conviction on the conspiracy count may be had when the defendant was not legally indicted for the crime under the applicable statutes. (Brown v. Elliott, 225 U. S. 392; Hyde v. United States, 225 U. S. 347, 357; United States v. McElvain, 272 U. S. 633.)

_ Lastly, defendant contends that the trial court erred in permitting the testimony of the deceased witness Weinberg to be read in evidence, and in refusing to permit any inquiry into the circumstances of his suicide.

The right to read into evidence the testimony of a witness upon a prior trial who has since died, is governed by the Code of Criminal Procedure (§ 8), which provides in part as follows

Rights of defendant in a criminal action.

“ In a criminal action the defendant is entitled * * * “ (3) to produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that * * *

“ (d) where the defendant has previously been tried upon an indictment or information embracing the same charge, the testimony of any witness who has testified upon such prior trial may be read in evidence upon any subsequent trial of the same indictment or information, upon its being satisfactorily shown to the court that the witness is dead' or insane, or cannot with due diligence be found in the state.”

During the pendency of the second trial and before being called to the stand, Weinberg, a witness for the People, committed suicide. At the first trial he had been fully and exhaustively cross-examined. During the present trial the prosecution read into the record a transcript of his previous testimony. The contention of defendant is that the above provision of the Code of Criminal Procedure does not apply because the former trial ended in a mistrial. The fundamental right of a defendant which is preserved here is the right of confrontation — that is, that the defendant shall have a proper opportunity to meet the witness face to face in cross-examination. (People v. Fish, 125 N. Y. 136, 152; Mattox v. United States, 156 U. S. 237, 242, 243.) In accordance with the foregoing principle, if this right of cross-examination is complied with, it does not matter how far the proceedings had progressed in the prior trial, nor how that trial was terminated. Thus, the fact that the former trial had resulted in a disagreement of the jury does not render inadmissible the prior testimony. (People v. Penhollow, 42 Hun, 103.) In dealing with a similar situation in a civil case, where the prior proceeding had never been formally terminated because the referee had died, the court, upon a re-trial, permitted the reading of the testimony and said: “ The fundamental ground upon which evidence given by a witness, who afterwards dies, may be read in evidence upon a subsequent trial, is that it was taken in an action or proceeding where the parties against whom it is offered or their privies have had both the right and the opportunity to cross-examine the witness as to the statement offered.” (Young v. Valentine, 177 N. Y. 347, 357.)

Nor do we find merit in the contention of defendant that the alleged refusal of the trial court to permit inquiry into the circumstances of the suicide of Weinberg constituted error. The Code of Criminal Procedure (§ 8) provides that the prior testimony may be read in evidence upon its being satisfactorily shown to the court that the witness is dead.” That is the sole requirement with which we are concerned here, and it was, of course, fully satisfied in this case.

The law is well settled that a deceased witness whose prior testimony is admitted may not be impeached by showing alleged contradictory or inconsistent statements or alleged declarations that the prior testimony was false. (Hubbard v. Briggs, 31 N. Y. 518, 536, 537; Stacy v. Graham, 14 N. Y. 492, 498-501; Mattox v. United States, 156 U. S. 237, 248-250.) The circumstances in the case at bar are well within this_rule. Here counsel for appellant desired to present to the jury the circumstances surrounding the death of Weinberg so that the jury might be permitted to speculate upon possible reasons for the suicide and thereby the testimony of the deceased witness might be impugned. In Motes v. United States (178 U. S. 458), upon which appellant relies, one of the persons who was to be a witness for the government was examined at the preliminary hearing before a United States Commissioner, and at such hearing counsel for the defendant cross-examined the prospective witness. When he was called at the trial, the witness was not to be found although he had been present one hour prior thereto. The question was whether the prosecution could introduce in evidence the preliminary examination of a living witness when it was not shown that his absence was caused by the defendants, that is, whether there had been shown a recognized exception to the rule of confrontation which justified the admission of such evidence. (178 U. S. at pp. 472,474.) But in the case at bar the ground upon which the evidence has been admitted is the death of the witness, and there is no suggestion that the witness in question is alive. Accordingly, the court in the case at bar had no alternative but to refuse to sanction any attempted impeachment of the deceased witness.

It follows that the judgments should be modified in accordance with this opinion and as so modified affirmed.

Lehman, Ch. J., Loughran, Sears, Lewis and Conway, JJ., concur; Rippey, J., concurs in result.

Judgment accordingly.


source: Caselaw Access Project

author: Lehman, Ch. J.

license: Public Domain

text:
    Frank Hewitt, Respondent, v. New York, New Haven and Hartford Railroad Company, Appellant.

      Argued April 24, 1940;
    decided October 8, 1940.

      E. R. Brumley and Samuel W. Earnshaw for appellant.

      Allen McCarty and Donald B. Biker for respondent.
   Lehman, Ch. J.

The defendant railroad maintains in the borough of the Bronx a terminal known as its Harlem River Terminal. Carload shipments of freight consigned to points on the defendant’s railroad lines and received by the defendant from the Lehigh Valley Railroad and other railroads at terminals on the New Jersey side of New York are transported on car floats by the defendant to its Harlem River Terminal and from there are hauled by the defendant over its track to the consignees. In the Harlem River Terminal the defendant maintains a building known as the Bronx Produce House, divided into sections which the defendant leases to fruit and produce merchants for use by them for offices and storehouses. Carload shipments consigned to these merchants are delivered there. The plaintiff is a wholesale fruit and produce commission merchant and maintains his principal place of business in two sections in that building which he leases from the defendant railroad company.

The season for the delivery of juice grapes at the Harlem River Terminal starts in August and ends in December in each year. The plaintiff and other commission merchants who are competitors of the plaintiff receive carloads of juice grapes, during the season, at the Harlem River Terminal. The defendant railroad makes rules and regulations for handling the cars containing such grapes. For the season of 1925 it decided to allot track room for 125 cars in its Harlem River Terminal for delivery of grapes and, in August, 1925, it gave notice to all connecting railroad lines that it had placed an embargo on all shipments of grapes intended for delivery at Harlem river, New York, except shipments covered by permits issued by the undersigned.” Claiming that, in the application of the embargo and of the regulations for handling the shipment of grapes and in the grant of permits during the period when the embargo was in force, the defendant had given “ undue and unreasonable preference and advantage to certain of plaintiff’s competitors and subjected plaintiff to an undue and unreasonable prejudice ” by acts set forth in the complaint, as amplified by the bill of particulars, the plaintiff, in this action, has sought damages for the violation of the defendant’s duty to render service to all members of the public without unreasonable or unfair discrimination.

In its answer the defendant denied the material allegations of the complaint and in separate defenses it alleged, first, that the court has no jurisdiction over the subject-matter of the action since it is founded upon an alleged undue and unreasonable preference or advantage by defendant against the plaintiff in the conduct of defendant’s business as a common carrier in interstate commerce, and there has been no adjudication by the Interstate Commerce Commission, which by the Federal statutes has full jurisdiction in the premises, of such alleged undue and unreasonable preference or advantage,” and, second, that in all things the defendant acted “ in full and exact compliance with the provisions of the Interstate Commerce Act * * *

and in accordance with defendant’s tariffs and official classifications.” The action was tried by the court without a jury and thereafter the court rendered a decision containing more than three hundred findings of fact. The court found that in many instances, recited in separate findings, the defendant had discriminated unfairly and unreasonably against the plaintiff by delaying or refusing shipments consigned to him and by transporting to the plaintiff’s competitors at the Harlem River Terminal cars consigned to them though such cars were received from the connecting carriers later. Upon those findings the court granted judgment in favor of the plaintiff for the consequent damages. The judgment has been unanimously affirmed by the Appellate Division..

The record on this appeal recites that it contains onlyjdie pleadings, the defendant’s request for conclusions of law which were refused, the decision and the judgment appealed from.” The defendant does not challenge the sufficiency of the evidence to sustain the findings. It challenges only the jurisdiction or power of the court to pass upon the issue of unfair and unreasonable discrimination or to grant judgment upon findings of such discrimination before the Interstate Commerce Commission has determined that such discrimination exists. Tested by rigid technical rules of pleading and practice there may be some doubt whether the answer or any other part of the record properly presents the question of law which the defendant seeks to bring up for review. We disregard possible technical defects there since it is not disputed that the question was actually litigated and decided in the courts below.

At common law, railroad carriers are under a duty to serve all persons without unjust or unreasonable advantage to any. So this court has said that a carrier should not be permitted to unreasonably or unjustly discriminate against other individuals to the injury of their business where the conditions are equal. So far as is reasonable all should be treated alike; but we are aware that absolute equality cannot in all cases be required, for circumstances and conditions may make it impossible or unjust to the carrier. * * * The facilities for loading and unloading may be different in different places, and the expenses may be greater in some places than in others. Numerous circumstances may intervene which bear upon the cost and expenses of transportation, and it is but just to the carrier that he be permitted to take these circumstances into consideration in determining the rate or amount of his compensation. His charges must, therefore, be reasonable, and he must not unjustly discriminate against others, and in determining what would amount to unjust discrimination all the facts and circumstances must be taken into consideration. This raises a question of fact which must ordinarily be determined by the trial court.” (Root v. Long Island R. R. Co., 114 N. Y. 300, 305.)

Congress, exercising its constitutional power to regulate interstate commerce, has in the Interstate Commerce Act (41 U. S. Stat. 474; U. S. Code, tit. 49, § 1 et seq.) commanded carriers in interstate commerce to perform the duties prescribed or defined in the act and has provided remedies for failure by a carrier to perform such duties. The act declares, however, that nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” (§ 22, subd. 1.)

The duty of a carrier to refrain from unjust and unreasonable discrimination in interstate commerce has been formulated in the act as follows: It shall be unlawful for any common carrier subject to the provisions of this chapter to make, give, or cause any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, * * * or any particular description of traffic, in any respect whatsoever or to subject any particular person, company, firm, corporation, association, locality, * * * or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” (§ 3, subd. 1.)

A carrier is, under the provisions of the act, liable for the full amount of the damages caused to any person or persons by any act of the carrier in the statute prohibited or declared to be -unlawful ” or for omission to do any act in the statute “ required to be done.” (§ 8.) Any person or persons claiming to be damaged may either make complaint to the commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter in any district court of the United States of competent jurisdiction * * *.” (§ 9.)

The act does not relieve carriers from common-law duties or deprive shippers and consignees of common-law rights except where it so provides expressly or by necessary implication. It has been said that “ the provisions of the interstate commerce act prohibiting unjust and unreasonable charges and unjust discrimination are merely declaratory of the common law.” (Lowry v. Chicago, B. & Q. R. Co., 46 Fed. Rep. 83, 85.) The act does more, however, than prohibit such wrongs. To afford effective means of preventing or redressing the wrongs resulting from unjust discrimination and unfair preference, the statute confers upon the Interstate Commerce Commission the administrative power and duty to require a carrier to make reasonable schedules of rates and to adopt reasonable rules and general administrative practices which must be uniformly observed. Though under the express terms of the statute common-law remedies may be invoked by an injured party for breach of a common-law duty and an action may be maintained in a State court against a carrier for “ damages caused by delay in shipment; damages caused by failure to comply with its common law duties and the like ” (Pennsylvania R. R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 130); yet in such an action for damages the court may not pass independent judgment, calling for technical knowledge, upon a rate schedule, rule or administrative practice which is challenged as unreasonable or discriminatory, where divergence of opinion in different tribunals might render ineffective the statutory “ prohibition against preferences and discriminations.” It has been said that there is indissoluble unity ” between that prohibition and the provisions of the statute which confer upon the Commission administrative powers and duties — including the power to sanction or condemn carriers’ rate schedules, rules and practices — in order to assure to all uniform and reasonable treatment. (Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 440.)

In every case cited by the defendant where resort to the Commission was required before an aggrieved party could recover from a carrier damages caused by its disregard of the prohibition against preferences and discrimination, the act or omission by the carrier of which complaint was made would find justification in the carrier’s filed schedules or in its rules or administrative practices if the Commission should sanction such schedules, rules or practices and the issue presented in each case was whether the schedule, rule or practice relied upon by the carrier was in fact unreasonable or discriminatory. In such cases prehminary resort to the Commission is required * * * because the inquiry is essentially one of fact and of discretion in technical matters; and uniformity can be secured only if its determination is left to the Commission.” (Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285, 291.)

That is true where the asserted grievance is that the carrier’s schedules or rules of practice disregard significant differences in conditions and fail to give to the person aggrieved the service which is reasonable in the light of conditions affecting him alone, and thus place him at a disadvantage in competition with others not subject to the same conditions, and it is true where the asserted grievance is that variations in the carrier’s schedules or rules of practice, though intended to meet varying conditions, are unreasonable and cause unfair discrimination in favor of the competitors of the aggrieved party. (Cf. Western & Atlantic R. R. Co. v. Georgia Public Service Commission, 267 U. S. 493; St. Louis, Brownsville & Mexico Ry. Co. v. Brownsville Navigation District, 304 U. S. 295; Northern Pacific Ry. Co. v. Solum, 247 U. S. 477; Morrisdale Coal Co. v. Pennsylvania R. R. Co., 230 U. S. 304; Mitchell Coal & Coke Co. v. Pennsylvania R. R. Co., 230 U. S. 247.)

The principle of these cases has no application, however, where the asserted grievance is not that a rule of practice is unreasonable or discriminatory but that the rule of practice is unequally applied.

“ It must be borne in mind that there are two forms of discrimination — one in the rule and the other in the manner of its enforcement; one in promulgating a discriminatory rule, the other in the unfair enforcement of a reasonable rule. In a suit where the rule of practice itself is attacked as unfair or discriminatory, a question is raised which calls for the exercise of the judgment and discretion of the administrative power which has been vested by Congress in the Commission. It is for that body to say whether such a rule unjustly discriminates against one class of shippers in favor of another. Until that body has declared the practice to be discriminatory and unjust no court has jurisdiction of a suit against an interstate carrier for damages occasioned by its enforcement. * * * But if the carrier’s rule, fair on its face, has been unequally applied and the suit is for damages, occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the courts being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff’s damage. Such suits though against an interstate carrier for damages arising in interstate commerce, may be prosecuted either in the state or Federal courts.” (Pennsylvania R. R. Co. v. Puritan Coal Mining Co., supra, pp. 131, 132.)

Here the plaintiff does not complain that the limitation by the defendant of track room for handling shipments of grapes or the embargo placed by the defendant on such shipments “ except shipments covered by permit ” was unreasonable or invalid. His asserted grievance is that the carrier discriminated unfairly against shipments to him, while the embargo was in force, either by granting permits for shipments to his competitors in preference to earlier shipments to him or by disregarding the embargo and handling cars consigned to his competitors though no permit had been granted.

The court has found that on many occasions the defendant railroad failed to sign permits, requested by the plaintiff for the transportation of carloads of grapes consigned to the plaintiff and which had been transported by the Lehigh Valley Railroad to the point of connection of its tracks with the tracks of the defendant and when, on other occasions, the defendant railroad did sign such permits, it delayed delivery to the plaintiff, though it did issue permits requested by competitors of the plaintiff who, like the plaintiff, had their place of business at the Harlem River Terminal or without permits it transported carloads consigned to them which had arrived at the same connecting point over the tracks of the Lehigh Valley Railroad several days later than the carloads consigned to the plaintiff. Such acts, the court found, constituted discrimination against plaintiff and in favor of his said competitors,” and also found that such discrimination was “ unreasonable.” Nothing contained in these findings requires or even permits an inference that the decision of the court awarding damages to the plaintiff could, in any manner, hamper the defendant in the performance of its duty to grant to all fair and equal service in accordance with the commands of the Commission or could in any way hamper the Commission in the exercise of the administrative powers and duties conferred Upon it in order that it might compel such service. Nor does it appear that in making its decision the court determined any question, where the “ inquiry is essentially one of fact and discretion in technical matters,” involving the reasonableness of any rule of practice of the defendant.

The defendant, however, points out that the court also found at its request that “ during the grape season of 1925 a representative * * * was stationed at the Harlem River Terminal and placed in charge of the issuance of permits under the embargo;” and that “ in the issuance of permits * * * it was left largely to the discretion of the representative of the defendant' in charge of the issuance of permits to determine whether or not a permit should be issued, whether or not the number of cars for which permits were requested should be limited and to estimate the conditions which would probably exist upon arrival of the cars for which permits were requested.” The defendant, according to the findings, relied upon connecting railroads to which permits had been issued to follow its instructions in connection with the use of these permits, yet as a result of an extensive investigation made by the defendant by checking way bills against permits it was found that a considerable number of cars had arrived at the Harlem River Terminal in excess of the authorization on various permits, that permits issued for a certain number of cars had been applied to a larger number of cars.” The court made no finding whether that situation was due to misconduct on the part of the defendant’s representative or to failure by other railroads to follow instructions sent to them, coupled with misplaced reliance by the defendant on the railroads to follow such instructions; but the defendant urges that the findings demonstrate that the court rested its award of damages upon a determination that the defendant’s rules of practice in applying the embargo were inadequate and unreasonable and were the cause of the alleged discrimination. The defendant insists, consequently, that the “ complaint, in reality, challenges the reasonableness or adequacy of the administrative arrangements themselves, it is essentially a rule or practice that is being attacked, and the case is for the Commission.”

Since the record on appeal does not include the evidence presented at the trial, the appellant cannot be heard to say that the findings of unreasonable discrimination are not based upon evidence that the discrimination was due to misconduct on the part of its representatives rather than to the inadequacy of its “ administrative arrangements;” but even if we should assume that the finding of discrimination is based solely upon evidence that the defendant’s administrative methods in applying the embargo were insufficient to enable it to detect the fact that connecting lines were not observing the defendant’s instructions or to assure fair and equal treatment to all, yet the fault of the defendant would still lie in the fact that it applied the embargo, intended to provide fair and equal treatment to all, in a manner which resulted in unfair discrimination against the plaintiff. Such discrimination is prohibited by the statute and the statute does not confer upon the Commission any power, by approval of an inadequate administrative system, to sanction or excuse such discrimination. Certainly where the findings show that an embargo or other general rule has been unequally applied and the “ suit is for damages occasioned by its violation or discriminatory enforcement,” and the findings do not show that any practice of the railroad would, if approved by the Commission, justify, even though it might explain, such discriminatory treatment, it cannot be said that the suit raises a question * * * which calls for the exercise of the judgment and discretion of the administrative power which has been vested by Congress in the Commission ” in accordance with the test formulated in Pennsylvania R. R. Co. v. Puritan Coal Mining Co. (supra).

The judgment should be affirmed, with costs.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgment affirmed.


text:
    Chase Watch Corporation, Appellant, v. Irving Heins, Respondent.

      Argued April 9, 1940;
    decided October 8, 1940.

      Abraham Karp for appellant.

      Shepard Broad and Jack D. Burris for respondent,
   Lehman, Ch. J.

The plaintiff in 1938 brought an action in the Municipal Court of the City of New York against the defendant to recover damages for the conversion of personal property of the alleged value of $100. The summons was indorsed: “ Plaintiff claims defendant is liable to arrest and imprisonment in this case.” The defendant appeared through his attorney, and entered a general denial but failed to appear at the trial. Judgment was taken upon his default for $100 and $9.50 costs and disbursements. The judgment provides that “ if execution against the property of the defendant is returned unsatisfied, plaintiff is hereby given leave to issue an execution against the person of the defendant.” Without serving a copy of the judgment on the defendant or his attorney, the plaintiff, after return unsatisfied of an execution against the defendant’s property, caused an execution against the defendant’s person to be issued and served.

After a writ of habeas corpus obtained by the defendant was dismissed, he moved in the Municipal Court for an order “ vacating and setting aside the judgment heretofore entered in this action * * *; vacating and setting aside

the execution against the person of the defendant * * *;

releasing and discharging the defendant from the Common Jail of the County of Kings.” In opposition the plaintiff presented affidavits tending to show that the defendant was entitled to no relief, but stated that “ if the defendant would file a surety company’s bond or deposit in court the amount of the judgment, plaintiff, to show its utmost sincerity, will consent to give the defendant another day in court and upon compliance with such condition, consents to the discharge of the defendant from imprisonment.” Accordingly the court granted the defendant’s motion only so far as consented to by the plaintiff and denied the defendant’s motion to vacate the execution against his person.

The defendant did not thereafter give the security required by the court as a condition precedent to any relief, but took an appeal from the order of the court. The Appellate Term of the Supreme Court unanimously modified the order “ upon the law ” by providing that the execution issued against the person of defendant be vacated and thereafter the Appellate Division affirmed the order of the Appellate Term and granted leave to appeal to this court, certifying for review the question: Should the motion to vacate the execution issued against the person of the defendant have been granted? ”

The right to an order of arrest or to an attachment against the person of a defendant in a civil action is created, defined and regulated by statute. The Civil Practice Act in section 504 provides that “ * * * * a final judgment may be enforced by execution; (1) where it is for a sum of money * * *; ” and in section 764 provides that “ where a judgment can be enforced by execution, as prescribed by section five hundred and four of this act, an execution against the person of the judgment debtor may be issued thereupon * * * (1) where the plaintiff’s right to arrest the defendant depends upon the nature of the action.” The judgment against the defendant is for a sum of money in an action where the plaintiff has a right to arrest depending upon the nature of the action ” as defined and provided in section 826 of the Civil Practice Act. The right of the plaintiff to enforce the judgment by execution against the defendant’s person is indeed not challenged; but the Rules of the Municipal Court of the City of New York provide that “ no execution shall be issued against any party who has appeared by an attorney in an action, unless a copy of the judgment has been duly served on the adverse party or his attorney, and proof of service thereof is filed with the clerk ” (Rule XIX, subd. C, now rule XXV), and the defendant urges that disregard of this procedural direction or command constitutes such a defect or irregularity that he is entitled as matter of right to an order vacating the execution.

The Civil Practice Act provides in its first section that this act * * *, except as otherwise expressly provided, shall apply to the civil practice in all the courts of record of the state.” The New York City Municipal Court Code (L. 1915, ch. 279) contains specific provisions relating to executions against the person or property of a defendant. (Cf. Municipal Court Code, §§ 25, 130-142.) To the extent that these sections are inconsistent with the general provisions of the Civil Practice Act, they supersede the general provisions, but neither in these sections nor in any other statute has the Legislature directed that no execution shall be issued before a copy of the judgment is served on the judgment debtor or his attorney and proof of such service filed. The primary question presented upon this appeal is whether the Legislature in providing that the “ board of justices may adopt and amend rules relating to the following subjects: (1) The forms and practices of the court, including forms of pleading and all matters of procedure not specifically provided for by law * * * ” (Municipal Court Code, § 8), intended to delegate to the board power to decree that the general provisions of the Civil Practice Act shall be superseded by special provisions contained in the rules; or power to add to the provisions of the Civil Practice Act, intended to cover the subject completely, and which by legislative command shall apply except as otherwise provided “ to the civil practice in all the courts of record of the state,” new provisions of equal force which shall apply only to the civil practice ” in the Municipal Court. Not unconnected with that problem is the question whether the rule was intended to be directory only or was intended to deny any force to an execution issued in disregard of its direction or command.

The respondent urges that since section 15 of the Municipal Court Code provides that “ except as otherwise provided in this act or in the rules, the practice, pleadings, forms and procedure in this court shall conform, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court, any statutory limitations, heretofore enacted, to the contrary thereof notwithstanding,” the Board of Justices has plenary power by rule to regulate the entire “ civil practice in the Municipal Court regardless of any provision or limitations contained in-the Civil Practice Act. Section 15 does not itself confer any power upon the Board of Justices to make any rules or to change in any manner the “ practice, pleadings, forms and procedure ” in the Municipal Court. Rulemaking power is conferred and defined by section 8, and no rule is valid which transcends the limits of the rule-making power as there defined. Like the rule-making power conferred upon other judicial bodies it is intended to supplement but not to supersede statutes enacted by the Legislature. The rule-making power of the Court of Appeals and of the justices of the Appellate Division in the four departments, conferred by sections 51 and 82 of the Judiciary Law (Cons. Laws, ch. 30), is subject to the express limitation that the rules shall not be inconsistent with any statute. The rule-making power conferred by the Legislature upon the Board of Justices of the Municipal Court extends only to the subjects therein specified, and among other things the forms and practices of the court, including forms of pleading and all matters of procedure not specifically provided for by law." The power so conferred is certainly not broader than the rule-making powers conferred upon the Court of Appeals or the justices of the Appellate Division by the Judiciary Law, and like those powers excludes the power to adopt rules inconsistent with the provisions of the Civil Practice Act which cover the same field. It cannot be used to extend or limit the jurisdiction of the court as defined by statute but by its own terms is confined to the field of forms and practices in the Municipal Court, and even in “ matters of procedure the power may be exercised only to fill in gaps where the law has failed to make provision. Section 15 was intended to insure that as nearly as may be there shall be uniformity of practice in the Municipal Court and in the Supreme Court. There may be variation only where the Municipal Court Code so provides, and in those matters where the law has failed to make provision and the judges of the Municipal Court have exercised power to fill in the gaps. The words any statutory limitations, heretofore enacted, to the contrary thereof notwithstanding,” far from indicating a legislative intent to authorize variation by rule in matters of procedure specifically provided for by law ” otherwise applicable to the Municipal Court, were intended to make provisions of law applicable also to that court even where a statute might have limited their application to the Supreme Court. The words are not open to any other construction. The section was adopted before the Civil Practice Act was enacted and insures the application to the Municipal Court of provisions of the Code of Civil Procedure notwithstanding section 3347 thereof, a section which has produced much conflict of authority.” (See note to section 15 of Municipal Court Code, appended to Parsons Code, 1920, edited by John T. Fitzpatrick and Austin B. Griffin.)

Even so limited, the rule-making power is doubtless sufficient to authorize the Board of Justices to adopt rules directing when and where its judgments should be filed before process or order is issued to enforce them, but statutory commands of that nature are ordinarily given only directory force, and the court is not, as matter of law, required to vacate its order or process issued in disregard of the statutory commands but may permit the defect to be cured by belated obedience. (Cf. Thompson v. Friedberg, 54 How. Pr. 519; Mather v. Hannaur, 55 How. Pr. 1.) The rule is subject to serious challenge only if it is construed as a limitation imposed upon the jurisdiction of the court or the rights of the plaintiff created and defined by the provisions of the Civil Practice Act, and only if it is so construed was the court bound as matter of law to vacate the plaintiff’s execution.

An analogous situation was presented in Broome County Farmers’ F. R. Assn. v. New York State Elec. & Gas Corp. (239 App. Div. 304; affd., 264 N. Y. 614). There the court gave only directory force to a General Rule of Practice challenged as inconsistent with the provisions of the Civil Practice Act. We give similar construction and force to the rule of the Municipal Court in this case.

The order of the Appellate Division and that of the Appellate Term should be reversed and the order of the Municipal Court affirmed, without costs. The certified question should be answered in the negative.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Ordered accordingly.


text:
    F. Ambrose Haughey et al., Respondents, v. Belmont Quadrangle Drilling Corporation, Appellant.

      Argued April 12, 1940;
    decided October 8, 1940.
    A. H. Harpending for appellant.

      Fitch H. Stephens and Olin T. Nye for respondents.
   Lehman, Ch. J.

In February, 1931, the plaintiffs and the defendant entered into a contract whereby the plaintiffs agreed to sell and the defendant agreed to buy the gas “ that may be produced from the well or wells drilled and from any other wells which may be drilled ” on certain tracts of land in Reading and Tyrone townships, described in the contract, upon which the plaintiffs owned gas leases, and also on any other oil and gas leases that they may acquire in Reading and/or Tyrone township, Schuyler County, New York.” The amount of gas which the defendant was obligated to take under the terms of the contract in any one month was limited to “ 10% of the gas marketed by the buyer from said field during the preceding month.” The plaintiffs did not after the making of the contract acquire any other leases ” in Reading or Tyrone townships, nor did they drive wells upon any tract, described in the contract, on which they already owned leases, except one tract of fifty acres known as the Allen tract. The defendant has paid the stipulated price for all the gas which it took from the plaintiffs’ wells on the Allen tract. The gas from those wells is drawn from a pool of sour gas ” known as the “ Altay Field,” and the defendant owns leases and pipe lines within the limited area of that pool or field. At the time the contract was made, no other gas pool or field below the surface of any part of Reading or Tyrone townships had been discovered, but thereafter a pool of “ sweet gas ” known as the Wayne Field,” was discovered below the surface of a small part of Tyrone township, remote from the Allen tract. The defendant has pipe lines and draws gas from the Wayne field as well as from the Altay field. The plaintiffs have no wells in the Wayne field.

The controversy between the parties concerns the extent of “ said field ” referred to in the contract between the parties. The defendant contends that the said field ” includes only gas wells drawing gas from the pool or field known as “ Altay ” and refuses to take from the plaintiffs’ wells, or to pay for, more than ten per cent of the gas marketed by the buyer from the Altay field. The plaintiffs claim that the words said field ” refer to the entire territory within Reading and Tyrone townships and to any pools or store of gas below the surface of that territory, and that the amount of gas which the defendant must take from the plaintiffs’ wells and pay for is measured by a percentage of the gas marketed by the defendant from both the Altay field and the Wayne field, since the plaintiffs "under the terms of the contract have the right to acquire leases in all parts of that territory. In this action the plaintiffs seek damages for the defendant’s failure to take and pay for ten per cent of the gas which the defendant marketed during the previous month from the wells in both of such fields.

The courts below have sustained the plaintiffs’ claim that the defendant has failed to take and pay for the stipulated amount of gas. The plaintiffs have recovered a judgment which awards to them, as damages for such breach, the amount of the purchase price of all the gas which the defendant has failed to take. An analysis of the evidence introduced and the arguments of the parties upon the questions of the extent of the defendant’s obligation and of the plaintiffs’ right to recover damages caused by the defendant’s refusal to take and pay for the stipulated amount of gas in accordance with that obligation would serve little purpose. We find no reversible error, there, in the rulings of the trial court or in its decision. The court, in our opinion, erred, however, in fixing the resultant damages.

The defendant’s obligation was to take the stipulated amount of gas from the plaintiffs’ wells and the contract provides “ for the gas so furnished, supplied and delivered into the pipe line of Buyer * * * by Seller, the Buyer agrees and binds itself to pay unto Seller at the rate of Fifteen (15) cents per thousand cubic feet for natural gas delivered into lines of Buyer.” The plaintiffs were required to lay properly equipped branch lines from their producing wells to the defendant’s pipe lines. When the defendant drew the gas from the branch lines into its pipe fines, then delivery of the gas by the plaintiffs was complete; until then no title to the gas produced ” by the plaintiffs’ wells passed to the defendant. Indeed, the gas which the defendant took from the plaintiffs’ wells into its own pipe lines was the only gas actually drawn from the underground pool and produced ” by the plaintiffs’ wells.

The defendant is liable to the plaintiffs for any loss caused by its refusal to accept and pay for the gas which the plaintiffs were able to supply within the stipulated limits of its obligation. (Pers. Prop. Law [Cons. Laws, ch. 41], § 132.) Where title to goods passes from the seller to the buyer, the loss caused by failure to pay for the goods is, it is plain, the amount of the purchase price. Here, however, the gas which the defendant should have taken was never identified or set apart from the mass or pool tapped by the plaintiffs’ wells, and no property in such gas passed to the defendant and none can pass to it now upon belated payment of the purchase price. Nor has the defendant agreed to pay the price irrespective of delivery or of transfer of title.” In such case the plaintiff cannot maintain an action for the price. (Pers. Prop. Law, § 144.) His remedy is an action against the defendant “ for damages for nonacceptance ” and in such action the measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract.” (§ 145.)

Since the buyer’s wrong left intact the seller’s power and right to take from the well the gas which the defendant should have taken and to sell such gas to any person ready and willing to buy it, the “ essential element of damage is,” it has been said, “ the difference between the contract price, that is, the amount of the obligation which the buyer failed to fulfil, and the market price, that is, the value of the goods which the seller has left upon his hands.” (2 Williston on Sales [2d ed.], § 582.) The plaintiffs in this action failed to prove that essential element of damage ” and the trial judge made no allowance for any value, to the plaintiffs, of the gas which the defendant failed to take, stating as his reason that the burden rests on defendant to show that the plaintiffs have failed to make “ a proper effort to minimize their damages by selling in the open market * * * (Milage v. Woodward, 186 N. Y. 252; Peoples Gas & Electric Co. v. State of New York, 189 App. Div. 421, 424; affd., 231 N. Y. 520; Ware Bros. Co. v. Cortland Cart & Carriage Co., 192 N. Y. 439, 442), or at any rate defendant was required to ‘ go on with the proof ’ after plaintiffs had made a prima facie case. (McClelland v. Climax Hosiery Mills, 252 N. Y. 347, 358; Strong v. American Fence Construction Co., 245 N. Y. 48, 54.)”

The loss directly and naturally resulting, in the ordinary course of events, ” from a breach of contract is the measure of damages applied not only in actions brought pursuant to section 145 as a remedy for a buyer’s breach of contract, but also in actions to recover damages for breach of other contracts. The nature of the obligation breached — the conditions and circumstances which differentiate one contract from another — are varying factors which must be considered in determining such loss. Damages are recoverable for losses caused * * * by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty ” (American Law Institute, Restatement of the Law of Contracts, § 331), and the plaintiff has always the burden of producing evidence sufficient to form a basis for the estimate. Evidence sufficient in an action for breach of a contract of employment may be insufficient in an action for breach of a contract of sale. An employer responsible for damages caused by his breach of a contract of employment may produce evidence which tends to show that the chain of causation between the wrongful discharge and consequent loss of wages was broken by the discharged employee’s unreasonable failure to obtain or accept other employment which was available. “ The great weight of authority is to the effect that the opportunity to be employed by another will not be presumed, but must be affirmatively shown.” (3 Sutherland on The Law of Damages [4th ed.], § 693.) Unless it is established the loss which directly and naturally flows from the discharge is “ prima facie * * * the wages that would be payable during the remainder of the term.” A discharged employee seeking such damages need go no further than is required to show a “ prima facie ” right to recover those damages. These principles, though sometimes phrased in form susceptible of misunderstanding,” have been long applied in this State in actions for damages resulting from wrongful discharge or from analogous violations of contractual obligations. (McClelland v. Climax Hosiery Mills, supra, 252 N. Y. 347. Cf. Howard v. Daly, 61 N. Y. 362; Milage v. Woodward, supra, 186 N. Y. 252.)

The loss resulting from the defendant’s refusal to take and pay for the stipulated amount of gas is not even prima facie the purchase price, but is the difference between that price and the value to the plaintiff of the gas which the defendant failed to take. This court has said in similar case that the vendor’s remedy is to “ recover the difference between the market price at the time and place of delivery, and the contract price.” (Dustan v. McAndrew, 44 N. Y. 72, 78. Cf. 2 Sedgwick on Damages, § 753.) That is the measure of damages which in the absence of special circumstances must be applied, in accordance with the statutory rule, where there is an available market. (Pers. Prop. Law, § 145, subd. 3.) Because the measure of damages which must be applied in this action and, ordinarily, in other actions brought by an unpaid seller for breach of a buyer’s obligation to take and pay for goods, is the difference between the contract price and the market price or the value of the goods; and because there is no presumption that the goods are without value and that there is no available market for the goods, there is no sufficient basis for estimating the loss directly and naturally resulting from the buyer’s breach of contract, unless the plaintiff supplies evidence of such facts or of other facts which would justify use of a different measure of the loss.

Here lies the distinction between an action to recover damages for a buyer’s failure or refusal to take and pay for goods, and an action to recover damages for wrongful discharge. In both cases the plaintiff must establish facts which form a basis for estimating the loss resulting from the defendant’s breach of contract; but the wages which would be payable during the remainder of the term ” form the logical basis for determining the plaintiff’s loss resulting from Ms discharge, unless it is established by presumption or by evidence that the plaintiff failed to take advantage of an opportumty to be employed by another, wMIe the agreed price for goods forms no logical basis for an estimate of the plaintiff’s loss resulting from a refusal by a buyer to take and pay for goods, unless in addition the value or absence of value of the goods is established by presumption or evidence. That distinction renders inapplicable the cases relied upon to sustain the recovery here.

We search in vain the record-in this case for any evidence establishing that there was no market for the gas which the defendant failed to take. The fact that the plaintiffs had agreed to sell only to the defendant would, it is plain, not preclude a sale to another after the defendant failed to take the stipulated amount. It follows that the judgment must be reversed and a new trial ordered at wMch the damages should be measured in accordance with the rules herein stated. We do not now consider whether there is evidence which established that the plamtiffs were in fact able to supply gas up to the stipulated limit. Upon a new trial, a clearer answer to that question may be given.

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

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgments reversed, etc.


author: Conway, J.

text:
    The People of the State of New York ex rel. Manhattan Square Beresford, Inc., Appellant and Respondent, against James J. Sexton et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents and Appellants. (Taxes of 1932 and 1933.) The People of the State of New York ex rel. Manhattan Square Beresford, Inc., Appellant and Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents and Appellants. (Taxes of 1934.)
    Argued May 29, 1940;
    decided October 18, 1940.

      Maurice Survis and Carl J. Austrian for relator, appellant and respondent.

      William C. Chanler, Corporation Counsel (Arthur H. Goldberg and Arthur A. Segall of counsel), for defendants, respondents and appellants.
   Conway, J.

There is presented an appeal by relator from an order of the Appellate Division, first department, which modified orders of Special Term in three tax certiorari proceedings for the years 1932, 1933 and 1934, and a cross-appeal from the order of modification which reduced the assessed values below the amounts fixed by Special Term. The issue is solely as to the value of the building which is a twenty-story apartment house. The reduced values were based upon a valuation arrived at by capitalization of potential income and substantially exceeded the reconstruction cost less depreciation as testified to by relator’s . uncontradicted expert witness, who had a large and varied experience for upwards of twenty years in building construction. In adopting that method of valuation reliance was placed entirely upon the testimony of a witness who-confessed that he could not and did not figure reconstruction cost less depreciation in reaching his conclusions.

In assessing an improvement upon real estate for tax purposes the maximum value which ordinarily may be placed upon it is reconstruction cost less depreciation. The value of the improvement arrived at by capitalization of potential or actual income may well be weighed and considered but if it be more than reconstruction cost less depreciation, at least in the absence of extraordinary circumstances not present here, the latter still remains the maximum value which may be assessed upon the property.

(People ex rel. D.,L. & W. R. R. Co. v. Clapp, 152 N. Y. 490; People ex rel. Equitable Office Bldg. Corp. v. Cantor, N. Y. L. J. July 9, 1921, p. 1225; affd., 207 N. Y. Supp. [App. Div. First Dept.] 899; People ex rel. N. Y. C. R. R. Co. v. State Tax Commission, 206 App. Div. 558; affd., 237 N. Y. 612; People ex rel. N. Y. Stock Exchange Bldg. Co. v. Cantor, 221 App. Div. 193; affd., 248 N. Y. 533; People ex rel. Hotel Astor v. Sexton, 159 Misc. Rep. 280; affd., 256 App. Div. 912; leave to appeal denied, 280 N. Y. 853.)

The values arrived at here exceeded so materially the uncontradicted proof as to the reconstruction cost of the building less depreciation that they, of necessity, indicate that the court failed to give effect to the limitation indicated. That was error as a matter of law.

In each proceeding the order should be reversed, with costs in all courts to the relator, and the proceedings remitted to the Special Term to proceed in accordance with this opinion. (See 284 N. Y. 737.)

Lehman, Ch. J., Loughran, Finch, Rippet, Sears and Lewis, JJ., concur.

Ordered accordingly.


author: Per Curiam.

text:
    The People of the State of New York ex rel. 243 Corporation, Appellant, against William S. Miller et al., Constituting the Board of Taxes and Assessments of the City of New York, Respondents.
    Argued September 30, 1940;
    decided October 18, 1940.

      Abraham J. Halprin, Isidore Sohn and Sigmund Solomon for appellant.

      William C. Chanler, Corporation Counsel (Mendel Lurie, Arthur A. Segall and Anthony Curreri of counsel), for respondents.
   Per Curiam.

Section 904 of the Charter of the City of New York (Laws of 1901, ch. 466, as amd. [formerly section 895], as it read until superseded by section 163 of the New York City Charter, effective January 1, 1938) prescribed that an application for correction of an assessment should be in writing but did not specify signature or subscription as a requisite. In People ex rel. Schwarz v. Miller (281 N. Y. 554) we said that the provision of the statute would naturally be read as a direction complete in itself and held that such an application need not be verified. In the present case the written unverified application was made under the provisions of the statute above referred to. The application for correction, filed with the respondents, was on a printed form with blanks filled by means of a typewriter, apparently a carbon copy. It was stated in the body of the application that the petitioner was the owner of the property and all the particulars required by the statute were given therein. At the bottom of the application where a form for verification was printed there was no signature by the pen of an officer of the applicant following the verification although the name of the applicant corporation in typewritten form appears both in the body of the form for verification and at its end. The verification was incomplete. It lacked the handwritten signature of the officer to the jurat. It was not under oath. There was no other signature by the applicant. There could be no doubt as to the identity of the applicant. We deem this a full compliance with the statutory requirements.

The provisions of section 2321 of the Penal Law have no bearing on the question of the sufficiency of the application before us. That section penalizes false statements upon an application to reduce a tax or assessment whether oral or in writing.

The application was sufficient and the orders appealed from should be reversed, with costs in all courts to the appellant, and the matter remitted to the Special Term for further proceedings in accordance with this opinion.

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

Ordered accordingly.