author: Conway, J.

text:
    The People of the State of New York, Respondent, v. Antonio Gezzo, Appellant.
    Argued June 2, 1954;
    decided July 14, 1954.

      James T. Viger for appellant.
    I. The court’s refusal to allow counsel for defendant to examine notes purportedly made by Inspector Sayers, á witness for the prosecution, of a conversation between Sayers and defendant on the day of the alleged crime, which notes Were used by Sayers on the witness stand to refresh his' recollection, constituted reversible error and a denial by the trial court of defendant’s right to effectively cross-examine the witness, Sayers. (Tibbetts v. Sternberg, 66 Barb. 201; Schwickert v. Levin, 76 App. Div. 373; Richardson v. Nassau Elec. R. R. Co., 190 App. Div. 559; Miller v. Greenwald Petticoat Co., 192 App. Div. 559; Morris v. United States, 149 F. 123.) II. The failure of the trial court Judge to answer one question proposed by the jury in the course of their deliberation and the trial court Judge’s failure to properly answer a second question so proposed constitutes reversible error. (People v. Cooke, 292 N. Y. 185; People v. Gonzalez, 293 N. Y. 259.) III. The order of the trial court Judge that cdtinsel for defendant was, under no circumstances, to speak or register an exception to the court’s answer to questions submitted by the jury during the eotirse of its deliberation, constituted a deprivation by the court of defendant’s right to counsel and, also, his right to a fair trial and was reversible error. (People v. Hull, 251 App. Div. 40; Maurer v. People, 43 N. Y. 1; Gangi v. Fradus, 227 N. Y. 452; People v. Parisi, 276 N. Y. 97.) IV. The verdict of the jury was and is clearly contrary to the weight of the creditable evidence. (People v. Guadagnino, 233 N. Y. 344; People v. Pignataro, 263 N. Y. 229; People v. Carbone, 156 N. Y. 413; People v. Peller, 291 N. Y. 438.)

      Timothy F. O’Brien, District Attorney (John T. Casey of counsel), for respondent.
    I. The court’s refusal to allow the defense to examine notes used by a prosecution witness on his direct examination did not constitute reversible error. (People
      v. De Simone, 181 App. Div. 840; People v. Miller, 257 N. Y. 54; People v. Campiglia, 258 App. Div. 916; People v. Buchalter, 289 N. Y. 181; People v. Ferraro, 293 N. Y. 51; People v. Laudiero, 192 N. Y. 304; People v. Barnes, 202 N. Y. 77; People v. Kiernan, 101 N. Y. 618.) II. The court’s instructions to the jury on the question submitted were in all respects proper. (People v. Cooke, 292 N. Y. 185.) III. The affidavit of a juror, mentioning his mistaken concept of the law in regard to premeditation and deliberation, cannot be considered on this appeal to show his confusion on premeditation and deliberation. (People v. Sprague, 217 N. Y. 373; People v. Gonzalez, 293 N. Y. 259; People v. Cooke, 292 N. Y. 185.) IV. The order of the trial court that neither the District Attorney nor counsel for the defense was to speak in the presence of the jury upon its return to court for further instructions, was not reversible error. (People v. Fiorentino, 197 N. Y. 560; People v. Turley, 153 App. Div. 671.) V. The verdict of the jury is sustained by the weight of the evidence. (People v. Schmidt, 168 N. Y. 568; People v. Fish, 125 N. Y. 136; People v. Seidenshner, 210 N. Y. 341; People v. Sanducci, 195 N. Y. 361; People v. Filippelli, 173 N. Y. 509; People v. Decker, 157 N. Y. 186; People v. Chapman, 224 N. Y. 463.)
   Conway, J.

On December 25, 1952, at about 3:00 p.m., Mrs. Mary Frank was shot and killed and one Stephen Spotten was wounded at the home of Mrs. Frank in the hamlet of Speigletown, Rensselaer County. It is admitted that defendant fired the shots and that he then shot himself in the head in an attempt at suicide.

On January 29, 1953, defendant was indicted on two separate indictments, the first of which charged him with the crime of murder in the first degree, for the murder of Mrs. Frank, and the second of which charged him with the crime of attempted murder in the first degree, for the crime committed on the person of Stephen Spotten. Defendant was tried under both indictments at the same time.

After deliberating for nearly seven hours the jury rendered a verdict against defendant convicting him of the crime of murder in the first degree on the first indictment and attempted murder in the second degree on the second. An appeal to the Appellate Division, Third Department, is presently pending from the latter conviction. We are here concerned with the conviction of the crime of murder in the first degree only.

Testimony on the People’s case was to the effect that defendant — a seventy-year-old laborer, married and the father of fifteen children — who had been keeping company with the deceased — a married woman of approximately forty years of age and the mother of three children — went to her home on December 25, 1952, at about 1:30 p.m. to visit her. While there he saw Stephen Spotten and the deceased and argued with Mrs. Frank over Spotten’s presence. He then left the house having threatened Mrs. Frank. Defendant returned to the Frank home at about 2:55 p.m. on the same day with a revolver, entered the house, shot and killed Mary Frank and wounded Stephen Spotten. Spotten testified that the shooting was unprovoked.

The defendant, who took the stand in his own behalf, maintained that, when he arrived at the Frank home on the first occasion, Stephen Spotten, who had spent the night of December 24th at the Frank home, said to him: ‘ ‘ Get out before I kill you ’ ’; that thereupon the defendant asked the deceased to call a taxicab for him, so that he might return to Troy, New York. When the taxicab came, he returned to his home in Troy and lunched with his family. He then went to a bar and grill in Troy where he was called to the telephone. He testified that it was the deceased who telephoned him and that she demanded that he return to her home in Speigletown. Defendant did return and, according to him, when he entered the house and reached the kitchen, he was accosted by Stephen Spotten. He testified that Spotten seized a knife from the table and, holding it up, advanced toward him, stating, “ I am going to stab you ”. The defendant further testified that he then drew a revolver, which he had procured at the time he returned to his home earlier in the day, and discharged it four times at Spotten. Two of the bullets struck Mary Frank causing her death.

Upon this appeal, defendant contends that the trial court committed reversible error: (1) in refusing to allow defense counsel to examine notes purportedly made by one Inspector Sayers, a witness for the prosecution, of a conversation between Sayers and defendant on the day of the alleged crime, which notes were used by Sayers on the witness stand to refresh his recollection; (2) in failing to answer one question propounded by the jury in the course of its deliberations and in failing to properly answer a second question so propounded, and (3) in ordering defense counsel under no circumstances to speak or register an exception to the court’s answer to the questions submitted by the jury during the course of its deliberations. The prosecution maintains: (a) that while the trial court erred in refusing to allow defense counsel to examine the memorandum used by Sayers to refresh his recollection, such error did'not materially prejudice defendant’s case; (b) that the court properly instructed the jury in the course of its deliberations, and (c) that the order of the trial court that neither the District Attorney nor counsel for the defense speak in the presence of the jury upon its return to the courtroom for further instructions, was not reversible error.

Sometime shortly after the shooting, defendant was admitted to a hospital in a critical condition and in a state of shock as the result of a self-inflicted gunshot wound in his head. At about 4:50 p.m. on that afternoon, Inspector Sayers of the New York State Police arrived at the hospital to interview defendant. A captain of the New York State Police, two State troopers, an assistant district attorney, and a coroner were present, apparently during the entire period of questioning, and a doctor and a priest were present during part of the time. A nurse who was attending defendant was also in and out of the room during the questioning. Sayers testified that during the questioning defendant was conscious, rational and able to answer questions. Sayers had no independent recollection of the questions asked by bim or of the answers given by defendant in response to his questions but stated that he had made a memorandum of the interview. The District Attorney asked that the witness be allowed to refresh his recollection by resort to the memorandum. The court granted that request. Defendant’s counsel requested permission to inspect the memorandum. Such request was denied. The District Attorney opposed the demand of defendant’s counsel to be permitted to examine the notes and stated that he was not offering the memorandum in evidence but merely wished to use it to refresh the recollection of the witness.

The witness then proceeded to testify to the interview, apparently reading verbatim from the memorandum, for his testimony is in question and answer form. The substance of Inspector Sayers’ interview with defendant, as testified to by Sayers, was that defendant admitted that he went to the Frank home with the preconceived intention of killing Mary Frank and that he carried the plan into effect.

The inspector admitted that he had made ‘ ‘ further notation ’ ’ on the memorandum after leaving defendant’s room at the hospital. He further admitted that no stenographic record of the conversation between himself and defendant was made; that he did not read the memorandum back to defendant or ask him to sign it.

The nurse who had been attending defendant was called as a witness by the People. She apparently did not concern herself with the questioning and did not testify as to the conversation had between Inspector Sayers and defendant. She testified merely to having observed a man taking notes while the questioning was going on at which time she said defendant was conscious and not in shock.

The coroner and two State troopers who were present in the room were called to the stand by the People but were not questioned concerning the interview between Sayers and the defendant. Neither the captain of the State Police, the assistant district attorney, the doctor nor the priest, all of whom were in the room either all or part of the time while defendant was being-interrogated, was called as a witness to corroborate Sayers’ testimony.

The memorandum used by Sayers in refreshing his recollection was never marked for identification.

Sayers further testified in answer to questions by the District Attorney that on December 27th, or two days later, he returned to the hospital in the company of an assistant district attorney and a stenographer and procured a second statement from defendant. This second statement taken down by the stenographer differed from the first one in that defendant maintained that Stephen Spotten held a knife in his hand at the time the shooting occurred.

The defense subpoenaed the stenographer and his notes. The second statement given by defendant was read into the record by the stenographer. In it defendant declared that, when Spotten threw the knife at him (defense counsel asserts that defendant meant that Spotten lunged at him with the knife but, because of Ms poor command of the English language, improperly said that Spotten threw the knife at him), he discharged the revolver and both Mary Frank and Spotten were, struck with the bullets. He denied that he had any intention of killing Mary Frank when he returned to the house the second time or that he so informed Inspector Sayers when he was first brought into the hospital. He explained that he went to the house armed because “ maybe they had a gun in the house. How would I know? They had a knife, I know that ’ ’.

When defendant took the stand in his own behalf, he denied that he intended to kill deceased. He testified that, when Spotten came at him with a knife in his hand, he shot her accidentally.

It is conceded by the District Attorney that the trial court’s ruling on defense counsel’s request to inspect the memorandum used by Inspector Sayers to refresh his recollection was error (see Tibbetts v. Sternberg, 66 Barb. 201; Schwickert v. Levin, 76 App. Div. 373; Richardson v. Nassau Elec. R. R. Co.. 190 App. Div. 529). However, he contends that it was an error which did not materially prejudice defendant’s case because quite apart from Sayers’ testimony the record contains evidence that the killing of Mary Frank by defendant was done with a premeditated and deliberate design to effect her death. Thus, he points (1) to the testimony of Spotten and of the deceased’s children that, when defendant first left the house, he threatened deceased, (2) to the fact that defendant armed himself with a loaded revolver before returning to the house, and (3) to the testimony of Spotten that defendant shot deceased and himself without provocation.

We cannot agree that the conceded error was thereby rendered harmless and insubstantial or that it may, by reason of this additional evidence of a premeditated and deliberate design to effect deceased’s death, be characterized as a nonprejudicial error.

Defendant conceded that he had shot both deceased and Spotten. The sole issue was whether he did so in self-defense, or, if not in self-defense, whether he did so with a premeditated and deliberate design to effect the death of Mrs. Frank. The evidence on those issues is in sharp conflict, and we cannot, with any degree of certainty, say that Sayers ’ testimony (which was uncorroborated by any of the other witnesses present at the time of interrogation) that defendant confessed to him that he intended to kill deceased when he returned to the house did not weigh heavily with the jury and was not responsible for the conviction of murder in the first degree. The alleged confession to Sayers took place within two hours after the shooting. Defendant was then in a critical condition and, according to Sayers’ testimony, in response to a question propounded by Sayers stated that he had no hope of recovery and believed he was going to die.

The belief that a dying man is ever presumed to speak the truth ” is ancient (see 5 Wigmore on Evidence, § 1430, p. 219 et seg.). As Wigmore says (§ 1438, p. 230): All Courts have agreed, with more ,or less difference of language, that the approach of death produces a state of mind in which the utterances of the dying person are to be taken as free from all ordinary motives to mis-state. The great dramatist [Shakespeare] expressed the common feeling long before it was sanctioned by judicial opinion.” (King John, act V, scene 4.) A classical statement of the principle is found in Woodcock’s Case (Leach Cr. L. [4th ed.], 500 [1789]): “ The general principle on which this species of evidence [dying declarations] is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is created by a positive oath administered in a court of justice Did that ancient and common feeling enter into the jury’s thinking when it considered Sayers’ testimony that defendant, "without hope of recovery, confessed to him that when he returned he intended to kill Mrs. Frank? That, we can never know.

It may be that an inspection of the memorandum would not have assisted defendant in any way. But, as was said in Tibbetts v. Sternberg (66 Barb. 201, 203, supra): “ The production of the paper might have been of no value to the defendant, but it is the principle thus sought to be established that is mischievous and dangerous. The right of a party to protection against the introduction against him of false, forged or manufactured evidence, which he is not permitted to inspect, must not be invaded a hair’s breadth. It is too valuable to be trifled with, or to permit the court to enter into any calculation as to how far it may be encroached upon without injury to the party ”. Or, as was written in Schwickert v. Levin (76 App. Div. 373, 375, supra): “ The defendant had the right to see, and to use on cross-examination, any memorandum or writing which had served to refresh the memory of the witness on his direct examination. * * * As the conversation was material, the defendant might possibly have been prejudiced by this limitation upon his cross-examination, and, therefore, I think that a new trial should be ordered. ’ ’

The trial court committed another serious error which warrants discussion.

About six hours after the case was submitted to the jury, the jurors returned into court seeking further instructions. Counsel have stipulated that, when the questions were submitted to the court, the court called counsel into chambers and instructed them that they were not to utter a word or make any statement whatsoever in open Court in the presence of the Jury and that neither could take an exception, or make any requests, at that time but were instructed that any words, statements or exceptions and requests, if any, were to be made to the Stenographer on the record after the Jury had been retired from the Court Boom to continue with its deliberations. ’ ’

The jury asked the following two questions: “ Classification of the Penal Law pertaining to the use of firearms in the case of first or second degree murder; also classification of first and second degree murder.”

The court answered as follows: ‘ ‘ Mr. Foreman and ladies and gentlemen of the jury: Section 1044 of the Penal Law of the State of New York entitled Murder, first degree, defined: ’ reads as follows: The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed from a deliberate and premeditated design to effect the death of the person killed or another.’ Section 1046 of the Penal Law of the State of New York entitled ‘ Murder, second degree, defined: ’ reads as follows: 1 Such killing of a human being is murder in the second degree when committed with a design to effect the death of the person killed or of another, but without deliberation and premeditation.’ ”

The jury then retired to the juryroom. Both counsel, on the oral argument in this court, stated that following those instructions the Judge returned to his chambers. Defense counsel argued further that in departing to chambers the Judge refused to give attention to counsel’s wish to register an exception to the charge. No exception was in fact noted on the record. Within twenty-eight minutes after the jury had returned to its deliberations, it brought in a verdict of guilty of murder in the first degree.

It is the defendant’s position that the jury was apparently confused as to the effect of the use of a firearm in the slaying, as bearing on the element of premeditation or as bearing on the degree of murder and that the court failed to answer the question asked by the jury relating thereto and returned them to the juryroom without having attempted to dispel the confusion in their minds. The prosecution maintains that there was no intimation in the question which the jury asked the court that any juror entertained any confusion of mind or doubt concerning the law which governed premeditation and deliberation.

• The questions — and it is clear that there were two — are, perhaps, not framed in the clearest of terms. It is, nevertheless, evident against the background of the evidence in the case that the jurors were desirous of knowing what weight they were to attribute, in determining whether defendant was guilty of murder in the first or second degrees, to the fact that defendant was armed when he entered the Frank home for the second time. The use of a firearm by him clearly troubled the jurymen or one or some of them. In the main charge the Judge had defined premeditation, deliberation, and design to effect death, but he did not discuss whether the jury was bound as a matter of law to presume that defendant killed deceased with a premeditated and deliberate design to effect her death from the fact that he went to her home armed with a revolver or whether any such conclusion was to be an inference of fact only. The jury in its second question asked for a classification of first and second degree murder.” The Judge in answer to the two questions simply read to the jury the definitions of murder in the first and second degrees as found in the Penal Law (§§ 1044, 1046). That is, he answered the second question only, ignoring the first question relating to firearms. It is settled law that a judge may not decline to answer a jury’s request for further instructions (Code Crim. Pro., § 427; People v. Gonzalez, 293 N. Y. 259; People v. Cooke, 292 N. Y. 185). Of course, it is not the law that any failure by a court categorically to answer any question propounded by a jury constitutes reversible error. But, it is the law as stated in People v. Gonzalez (supra, p. 262): “ that if to a proper question the court gives no answer at all or an answer that fails to answer, then the error is reversible.”

In this case the jury had been deliberating for some six hours when it requested further instructions. An impasse had been reached. The jurymen felt that additional instructions were necessary to dispel a doubt existing in the mind of one or some of them. There can be no question but that the doubt was caused by defendant’s possession of a revolver when he returned to the Frank home. Within twenty-eight minutes after they were returned to the juryroom, without having received the instructions sought, they returned to the courtroom with a verdict of guilty of murder in the first degree. It was during those minutes when the jury was left to its own conclusions that defendant’s fate was decided adversely to him.

In People v. Gonzalez (293 N. Y. 259, 263, supra) we quoted with approval the following statement from Chief Judge Lehmah’s dissenting opinion in People v. Cooke (292 N. Y. 185, 193, supra): ‘ ‘ The court must give the information requested, and where the court fails to give information requested upon a vital point no appellate court may disregard the error under section 542 of the Code of Criminal Procedure ’ ’.

Here, the information requested pertained to a vital point, viz., whether the jury was to presume or infer premeditation, deliberation or design to effect death from defendant’s use or possession of a firearm and it was reversible error for the court not to have instructed the jury thereon.

The prosecution maintains that the jurymen were apparently satisfied with the court’s instructions since they did not request further instructions although the court informed them that they could do so. The answer to that argument is found in the following language from People v. Gonzalez (supra, p. 261): “ Their question, while not framed in language of the utmost possible clarity, was intelligible and, even if it were not, it was the court’s duty to ask the questioners to make their inquiry clearer. That there was a binding duty to answer the question cannot be doubted.” (Emphasis supplied.)

Here, no answer was given to the first question and the Judge did not ask the jury for an explanation of the meaning of that question.

The fact that counsel for defendant did not except to the Judge’s failure to instruct is immaterial since in a capital case we have the power to order a new trial in the interest of justice, whether or not an exception shall have been properly taken in the court below (Code Crim. Pro., § 528; People v. Leyra, 302 N. Y. 353, 365; People v. Nelson, 189 N. Y. 137).

In view of the foregoing, we find it unnecessary and, therefore, do not determine whether the Judge’s instructions to counsel not to speak in the presence of the jury upon its return to the courtroom for further instructions, constitutes, in and of itself, reversible error as a deprivation of the defendant’s right to counsel at every stage of the proceedings.

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

Lewis, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Judgment of conviction reversed, etc.


source: Caselaw Access Project

author: Lewis, Ch. J. Dye, J.

license: Public Domain

text:
    George C. Le Roux, Appellant, v. State of New York, Respondent. R. Bernadine Le Roux, Appellant, v. State of New York, Respondent.
    (Claim No. 31007.)
    (Claim No. 31008.)
    Argued May 27, 1954;
    decided July 14, 1954.

      Arthur W. Agan for appellants.
    I. There was substantial evidence to sustain the finding of the trial court that the appellants were invitees. (Parry v. State of New York, 193 Misc. 875; Piche v. State of New York, 202 Misc. 84; Kittle v. State of New York, 245 App. Div. 401.) II. The State had actual or constructive notice or knowledge of the existence of the well. III. The State made no inspection prior to the accident and took no precautions to guard the general public. IV. The well as it existed on the day of the accident constituted a dangerous condition. V. The State was negligent and such negligence was a proximate cause of the accident.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for respondent.
    I. The State was not negligent. II. Negligence of the claimants contributed to the accident.
   Lewis, Ch. J.

The claimant-appellant R. Bernadine Le Roux recovered a judgment in the Court of Claims for personal injuries sustained when she fell into an abandoned well located on property owned by the State of New York. Her husband was awarded damages in a separate derivative action for medical expenses and loss of services resulting from his wife’s injuries. The Appellate Division reversed the judgments, made new findings and dismissed both claims. The cases are here on appeals taken as of right by both claimants from the judgments entered upon the Appellate Division orders of reversal.

From the record before us it appears that for a period of at least twenty years prior to the accident which befell the claimant the State has owned and, through its Conservation Department, has maintained a tract of land of approximately 4,000 acres near the hamlet of Summerhill, in Cayuga County, used as a reforestation area and public hunting ground. The area is abandoned farm land upon which were formerly located farmhouses, barns and other incidental structures. A dirt highway, known as the Old Salt Road, extends from the hamlet of Summer-hill northerly through the area. On either side of Old Salt Road are shrubbery and bushes — growth described by one witness as being “ just natural growth that you find in places like that ”. Along the side of the road are signs bearing the following legend:

“ STATE REFORESTATION AREA
Planted With Trees To Produce Timber
BE CAREFUL WITH FIRE
Conservation Department
PUBLIC HUNTING GROUND
STATE OF NEW YORK Conservation Department ”

On July 25, 1951, the claimant, with her husband and four children, drove from their home in Homer, Cortland County, to nearby Summerhill, thence northerly on Old Salt Road to a point in the area where, after dismounting from their car, they walked into the brush and proceeded to pick berries. In doing so, the claimant, who had become separated a few feet from her husband, took a step forward and fell into an abandoned well, sixteen feet deep, striking an upright metal pipe lodged in the bottom course of the well. In the well was stagnant water in which claimant was immersed up to her shoulders when she had regained her footing.

It will become important to our decision to note that the well opening — so covered by brush that claimant had not seen it before her fall — was two and one-half to three feet in diameter at ground level, located about forty feet east of the center line of Old Salt Road and only about twenty feet from the foundation walls of a demolished farmhouse. Also of importance is the fact, shown by a survey made by the State’s witness Meylan, that one of the signs, bearing the legend quoted above, was fastened to a tree which was seventy-one feet northerly from the well.

The roster of Conservation Department employees assigned to the area include the district forester in charge, under whom is a forester who has supervision over twenty-five laborers; also a district ranger under whom are two “ managers ”.

James D. Kennedy, the district forester in charge of the area, called as a witness for the State, testified that the area, which is open to the public for hunting, has been a " very popular hunting place for people miles and miles away ’ ’, and that, although it is not formally a recreation park, those in charge have never objected to people picking berries on the preserve. Kennedy could not recall having seen the building foundations near the open well here involved prior to the filing of the claims herein. He knew, however, that the preserve comprised abandoned farm lands which had been occupied formerly by farmhouses, barns and incidental buildings, and he had learned from his experience there that, on property of that kind, wells are generally located in reasonably close proximity to the site of former buildings. Despite such knowledge by the district forester in charge of the area for the State, he testified that, as to precautions taken against the presence of abandoned wells, “We have never made a systematic inspection [to find old wells on old abandoned farms], but we have had a standing verbal order for a great number of years with the employees under me that any old wells which we found were to be filled immediately ’ ’. It also appears that hunters were asked to report any hazards which they may find on the area.

The State’s witness Meylan, a district ranger working at the area, testified that — prior to the date of claimant’s accident in July, 1951 — he and a group of laborers had worked near the site of the well into which claimant fell and that he had then observed the foundations of a house near the place where claimant was injured.

On the foregoing evidence, the Court of Claims made findings as follows:

The Court finds that on July 25th, 1951 claimants were invitees on the State Reforestation Preserve; that as such the State of New York owed them the duty of reasonable care; that the State knew that this Preserve was composed of abandoned farmlands and buildings, and should have anticipated the presence of wells of this sort in the vicinity and in this area, and that the well as it existed on the day of the accident constituted a dangerous condition. The State should have made a reasonable inspection of the area or taken other adequate protective measures. The State made no inspection prior to the accident and took no precautions to guard the general public.

“ The Court finds that the State of New York was negligent and that such negligence was a proximate cause of the accident. The claimants were not negligent. ’ ’

At the Appellate Division, the orders reversing the judgments for claimants entered in the Court of Claims, stated in part: ‘ It is hereby ORDERED, That the findings of fact contained in the decision to the effect that claimants were invitees; that the State should have anticipated the presence of wells in this area and should have made a reasonable inspection of the area or taken other adequate protective measures; that the State made no inspection prior to the accident and took no precautions to guard the general public; that the well as it existed on the day of the accident constituted a dangerous condition; that the State was negligent and that such negligence was a proximate cause of the accident be, and the same hereby are disapproved and reversed.”

The Appellate Division also made the following new findings of fact and a single new conclusion of law: 1. Claimants were licensees on the State reforestation preserve. 2. The State had no actual or constructive notice or knowledge of the existence of the well. 3. There was no negligence upon the part of the State which could be the proximate cause of the accident. * * * The State of New York is entitled to judgment dismissing the claim herein.”

In support of its decision that claimants were licensees upon the property and the State’s duty toward them was to abstain from inflicting intentional or willful injury and from creating snares or traps, the Appellate Division cited Carbone v. Mackchil Realty Corp. (296 N. Y. 154). We regard the facts upon which was based our decision in the Carbone case as being substantially different from those now before us. There the infant plaintiffs were injured while playing on undermined foundation walls located on defendants’ private property at a site more than 150 feet from the public street. While there was evidence that children had played at or near the foundations prior to the accident, there was also proof that defendants’ employees had repeatedly “ chased ” children away from the area. In concluding that plaintiffs were not invitees to whom defendants owed a duty to make safe the foundation walls, 11 far removed from lanes of public travel ” (supra, p. 160), we said (p. 158): ‘ ‘ When the three infant plaintiffs came upon defendants ’ property they were uninvited. Motivated as they were by their own curiosity, or by a desire for amusement in no way connected with business or other relations with the defendants, it cannot be said that the defendants’ failure in this instance to prohibit their instrusion was in any sense an invitation. Giving to the infant plaintiffs every favorable inference which may be had from the evidence they were at most bare licensees.”

The distinction between the status of the plaintiffs in the Carbone case (supra) and that of the present claimants is apparent. Our present record makes clear the fact that, unlike Carbone, the property upon which claimant was injured was specifically maintained for public purposes and for public use. Signs posted along the Old Salt Road and observed by claimant — one of which was near the abandoned open well — described the premises as a “ Public Hunting Ground ” and carried the warning “ Be Careful With Fire ” as a precaution against the careless destruction of the woodlands by members of the public entering thereon. The State forester in charge of the preserve testified that the area was open to the public; that “ for some years ” many people had been accustomed to hunt in the preserve, and that he and those under his supervision had never objected to people picking berries at that location.

In view of the foregoing proof we think it may not be said that claimant’s status was comparable to that of the infant plaintiffs in the Carbone case {supra) —viz., bare licensees to whom the landowner owed no duty other than to refrain from willful or wanton injury. In the case at hand claimant and her family had entered upon the preserve with knowledge gained from signs which bore the legend Public Hunting Ground ”. They thus became entitled to expect that the State, as owner and maintainer of land for public use, would exercise reasonable care to prevent, or to warn against, dangers to claimant and others coming upon the land which the State’s agents knew, or should have known, existed. When we seek to determine whether or not ordinary care has been exercised the test is the foreseeability of the risk.” (People v. Sandgren, 302 N. Y. 331, 339; Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339, 344-345; O’Neill v. City of Port Jervis, 253 N. Y. 423, 434.) Applying that test to the undisputed facts now of record before us, we note that, despite knowledge by the district forester in charge, that the area here involved had formerly been occupied by farm buildings and that wells are generally to be found near such structures; and despite knowledge by the forest ranger — an assistant to the district forester — of the prior existence of a farmhouse, the foundations of which still stood twenty feet from the well in which claimant was injured, nothing had ever been done by the State’s agents either to discover any abandoned well which might reasonably have been anticipated on the premises or to warn persons coming onto the preserve of the probable existence of such a hazard. Here the State’s agents knew that an open, unmarked, abandoned well constituted potential danger to those who came upon the preserve at the invitation, and with the consent, of the State. Failure to take precautionary measures either to discover and eliminate any open wells or to give adequate, warning to the public generally of their probable existence, was a breach of the State’s duty to protect persons coming rightfully on the premises' from danger reasonably to be foreseen.

That the existence of abandoned wells is a source of danger has been recognized by the Legislature through its enactment in 1950 of section 1904-a of the Penal Law. That section provides :

“Abandoned wells or cesspools. Any person, firm or corporation owning or being in possession of land upon which there is located an abandoned well or cesspool must cover the same with suitable protective construction. Whoever omits to comply with this section is guilty of a misdemeanor.” (L. 1950, ch. 397.) The foregoing provision has been made applicable to the State by section 37 of the General Construction Law, which provides in part that: “ When used to designate a party whose property may be the subject of any offense, the term person also includes the state, or any other state, government or country which may lawfully own the property in the state. ’ ’

As to that argument it is said in behalf of the State that, in the circumstances of the present" case, no violation of section 1904-a of the Penal Law has occurred because, ‘‘ In penal legislation, making a person guilty if he does something or unless he does something, the word ‘ knowingly ’ is implied ”, and that here the State did not have actual knowledge of the existence of the well in which claimant was injured. We regard that argument as irrelevant in the present civil litigation where we are not concerned with a criminal prosecution under section 1904-a of the Penal Law; nor is it necessary to decide whether defendant is chargeable with that degree of knowledge sufficient to sustain a criminal conviction. The significance of section 1904-a id. is that it points up the danger which exists from unmarked, unprotected abandoned wells — dangers the Legislature apparently regarded as public hazards which, as a matter of public policy, warranted penal legislation to compel their elimination.

The State’s final point relates to alleged contributory negligence of the claimants which — it is asserted — bars their recovery in the present action. Upon that subject, however, the Court of Claims found that “ The claimants were not negligent.” That finding of fact was not reversed by the Appellate Division and, accordingly, being supported by substantial evidence of record, it is conclusive in this court. (Harrington v. Harrington, 290 N. Y. 126, 130; Aerated Products Co. v. Godfrey, 290 N. Y. 92, 95; Cohen and Karger, Powers of the New York Court of Appeals, pp. 477-478.)

As to findings of fact reversed by the Appellate Division and the new findings made, we think the weight of evidence supports the findings of the Court of Claims.

Accordingly, the judgments entered upon the orders of the Appellate Division should be reversed, and the judgments of the Court of Claims reinstated, with costs in this court and in the Appellate Division.

Dye, J.

(dissenting). I dissent and vote to affirm.

There is nothing to show that the State knew or should have known of the existence of the old well and' its potential danger to others. The lands in question, a tract of about 4,000 acres, formed part of the 65,000-acre State reforestation area spread over six counties. It was planted to forest trees and was not designed or intended for public recreational purposes. True, hunting was permitted during the fall season and, so far as this record shows, no one had ever been put off for going into the area for other purposes. This, however, is not enough to give the claimants the status of an invitee. At the very most, they were licensees to whom the State owed no duty other than to refrain from inflicting willful or intentional harm and the creation of snares and traps (Restatement, Torts, § 342). The State was under no duty to these claimants to inspect and warn. They were there on a personal errand, the picking of berries, and, according to Mrs. Le Roux, at a place about twenty feet from the path she pushed and forced her way through bushes above my waist ” three or four feet high. She observed nothing, was feeling her way through when she fell. Those circumstances tend to emphasize the unwarranted extent to which the claimant would have us push the role of liability by a reversal here. As the case comes to us the issue of contributory negligence is not open — and it need not be to affirm — since, on this record, the weight of evidence as to negligence in the first instance preponderates in favor of the State.

The judgments should be affirmed, with costs.

Conway, Desmond, Fuld and Froessel, JJ., concur with Lewis, Ch. J.; Dye, J., dissents in opinion in which Van Voorhis, J., concurs.

Judgments reversed, etc.

       In the statement of facts which follows, unless otherwise indicated, the term “claimant” will refer to the injured party, R. Bernadine Le Roux.


author:
Conway, J.
      Desmond, J.

text:
    In the Matter of the Voluntary Dissolution of Seamerlin Operating Co., Inc. T. Victor Searing, Respondent; Bartolo Merlino, as Committee of Anthony Merlino, an Incompetent, Appellant.
    Argued May 20, 1954;
    decided July 14, 1954.

      Sidney S. Bobbe and Louis George Rudd for appellant.
    I. The court at Special Term had no power to disregard the findings of the Eeferee. (Albany Brass & Iron Co. v. Hoffman, 30 App. Div. 76; Ward v. Bronson, 126 App. Div. 508; Beach v. Cooke, 28 N. Y. 508; McDougall v. Shoemaker, 236 N. Y. 127; McCleary v. McCleary, 30 Hun 154; Matter of Cartier v. Spooner, 118 App. Div. 342; Dean v. Driggs, 82 Hun 561; Frank v. Wolfe, 166 Misc. 415.) II. There was no deadlock in the board of directors respecting the management of the affairs of the corporation, and there was therefore no basis for a dissolution. (Hitch v. Hawley, 132 N. Y. 212; Matter of Radom & Neidorff, Inc., 282 App. Div. 854, 307 N. Y. 1; Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185; Matter of Cantelmo [Brewer], 275 App. Div. 231; Sterling Industries v. Ball Bearing Pen Corp., 298 N. Y. 483; Matter of Binghamton Gen. Elec. Co., 143 N. Y. 261; Matter of Dolgeville Elec. Light Co., 160 N. Y. 500.) III. A dissolution would not be beneficial to the appellant as a stockholder. (Hitch v. Hawley, 132 N. Y. 212; Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185; Matter of Radom & Neidorff, Inc., 282 App. Div. 854, 307 N. Y. l; Matter of Cantelmo [Brewer], 275 App. Div. 231.) IV. The petition was brought in bad faith. (Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185.)

      Bernard Lefkowits for respondent.
    I. No question of law is presented which warrants reversal of the order of the Appellate Division. (McCleary v. McCleary, 30 Hun 154; Bantes v. Brady, 8 How. Prac. 216; Sullivan v. McCann, 124 App. Div. 126; Wacenske v. Merchants Desp. Transp. Co., 237 App. Div. 868; Central Hanover Bank & Trust Co. v. Eisner, 276 N. Y. 121; Marshall v. Meech, 51 N. Y. 140.) II. Findings of Special Term, based on ample evidence and affirmed by the Appellate Division, are not reviewahle by this court. (Metropolitan Sav. Bank v. Tuttle, 293 N. Y. 26; Matter of Langslow, 167 N. Y. 314; Townsend v. Bell, 167 N. Y. 462; Harrington v. Harrington, 290 N. Y. 126; Dennerlein v. Martin, 247 N. Y. 145; Angelos v. Mesevich, 289 N. Y. 498; Matter of Plass v. Central New England Ry. Co., 226 N. Y. 449; City of New York v. Wilson & Co., 278 N. Y. 86; Shepard v. Manhattan Ry. Co., 169 N. Y. 160.) III. The order of Special Term is discretionary and, therefore, not reviewahle by this court unless there is an abuse of discretion. (Delaware, L. & W. R. R. Co. v. Slocum, 299 N. Y. 496; April v. April, 272 N. Y. 331; Mills v. Davis, 53 N. Y. 349; Matter of Staiger, 249 N. Y. 229; Anonymous, 59 N. Y. 313; Mongaup Valley Co. v. Nyamco Associates, 247 App. Div. 694; Livermore v. Bainbridge, 56 N. Y. 72; Matter of Mellen v. Board of Elections of City of N. Y., 262 N. Y. 422.) IV. Sufficient evidence to warrant dissolution of the corporation pursuant to section 103 of the Gleneral Corporation Law was adduced. (Matter of Block, 186 Misc. 945; Clark v. Dodge, 269 N. Y. 410; Matter of Superb Diamond Cutting Co., 183 Misc. 876; Matter of Bown Bros., 111 Misc. 294; Matter of Kaufman Circle Express Co., 177 Misc. 106.) V. Where the object of a corporation’s existence cannot be attained, it is beneficial to the stockholders and creditors that the corporation be dissolved. (Hitch v. Hawley, 132 N. Y. 212; Cuppy v. Ward, 187 App. Div. 625.) VI. Searing could not elect a board of directors by himself. Informal meetings of a close corporation’s directors are adequate for transacting corporate business. (Simonson v. Helburn, 198 Misc. 430; Barnes v. All Amer. Investing Co., 120 Misc. 706; Carney v. Penn Realty Co., 174 App. Div. 86; Murray v. Smith, 166 App. Div. 528; Gerard v. Empire Square Realty Co., 195 App. Div. 244.) VII. The president of a corporation has no power, except in the event of an emergency, to institute suit without the board’s consent where the directors are equally divided and a director or his other corporation is the prospective defendant. (Sterling Industries v. Ball Bearing Pen Corp., 298 N. Y. 433; Recamier Mfg. Co. v. Seymour, 15 Daly 245.)
   Conway, J.

By an agreement dated August 22,1947, T. Victor Searing and Anthony T. Merlino agreed, inter alia, (a) to organize the Seamerlin corporation; (b) to execute in the name of, or assign to, said corporation a lease for certain premises at 24A-248 West 42nd Street in the city of New York; (c) that each would vote his stock for election of Searing as president, and Merlino as secretary and treasurer of Seamerlin; (d) that each of the parties would vote his stock so that at all times each should elect an equal number of the members of the board of directors; (e) that the stock of each of the parties should not be assigned, sold or transferred or pledged without the prior written consent of the other; (f) that Merlino was to be supervisor of any business "which the parties might decide to conduct in the leased premises; (g) that the stock of Seamerlin — when issued — would be indorsed with a statement indicating that it was subject to the conditions and terms of this agreement; and (h) that in case of any dispute between the parties with respect to this agreement or its interpretation, the same should be submitted to arbitration.

Later in August, 1947, the petitioner-respondent T. Victor Searing, and Anthony T. Merlino organized Seamerlin as a real estate operating company with an authorized capital of 100 shares of no par value common stock. Petitioner Searing holds 55 of those shares, and is and has been president of the corporation and one of its directors. Merlino is and has been the secretary and treasurer as well as the other director of the corporation, and holds the remaining 45 shares of its stock. The certificate of incorporation of Seamerlin and its by-laws provide for a board of directors of four, but only two — Searing and Merlino — have been elected.

The respondent Merlino was admitted to Brooklyn State Hospital in August of 1952 and judicially declared incompetent in October of the same year. He is thus now a ward of the court and his brother, his committee, is subject to the court’s direction along the lines of reasonable conduct.

The petitioner, Searing, and his wife are part owners of the premises on 42nd Street. Searing himself has been the landlord of these premises since late 1949 or early 1950 by virtue of a sublease to him of the entire building. The premises leased by the Seamerlin company for a period expiring in June, 1957, comprise the ground floor and all of the basement, except the boiler room and the elevator shaft, together with a small portion of the fifth floor of the building on West 42nd Street. In addition, the lease included a small parking lot in the rear of the building. In one front corner portion of the building, facing out on West 42nd Street, there has been a Milk Bar ” owned and operated by Merlin Enterprises, Inc., in which Merlino and Searing had been partners until May, 1949, when Searing sold out his interest to Merlino. That " Milk Bar ” was a sublessee of Seamerlin, and occupied a ground floor space of about fourteen by forty-five feet, together with some space in the basement of the building. All of the remainder of the ground floor in the premises leased by Seamerlin was sublet to and occupied by 42nd Street Enterprises, Inc., which used them for the operation of an amusement arcade. The premises occupied by such amusement arcade on the ground floor, therefore, were in the shape of an “ L ” which ran back from the street, alongside the milk bar, and then back and around the rear of that milk bar. There was no dividing partition between Merlin Enterprises, Inc., and the amusement arcade, and no demarcation in the premises to indicate the boundary line between those two independent businesses and, consequently, patrons could wall? from one of the businesses to the other without any hindrance or indication that there were different owners.

The entire income, of the Seamerlin Operating Company, Inc., is derived from the rentals received from its sublessees or statutory tenants, which include 42nd Street Enterprises, Inc., and Merlin Enterprises, Inc. The rent paid by Seamerlin is $44,500 per annum plus certain amounts toward real estate taxes and fuel costs of the building. Its income from rentals, as found by the Eeferee, is between $60,000 and $65,000 per annum. The Eeferee further found: “ Seamerlin Operating Co., Inc., was organized with an investment of $10,000.00 * * * and the corporation had been earning approximately $15,000.00 a year. Searing, the petitioner, has been getting a salary of $2,750.00 a year, and $5,000.00 a year in dividends * * * and Merlino, until he became an incompetent received a salary of $2,250.00 plus dividends * * *.

The business of the corporation as is apparent from the above is the management of its sub-tenancies, the active management from its inception has been carried out by T. Victor Searing ”.

By petition verified on December 18, 1952, two and one-half months after the adjudication of incompetency, Searing prayed for a dissolution of the Seamerlin corporation on the ground that the directors of that company * * * are hopelessly deadlocked with respect to the management and conduct of the business of the corporation and will never be able to reach any accord of judgment and opinion with respect to such management and conduct, or even with respect to the election of a Board of Directors ”. The petition further alleged (1) that Merlino — the sole other director of Seamerlin — is the president and sole stockholder of Merlin Enterprises, Inc., and that he has used his position as director of Seamerlin to the disadvantage and detriment of that corporation and in order to protect Merlin Enterprises, Inc., which, it was alleged, had frequently defaulted in the payment of its rent, and had allowed its business premises to be operated and maintained in such a fashion and condition (a matter largely of cleanliness and lighting) that 42nd Street Enterprises, Inc. — which pays annual rentals of approximately $46,900 — is threatened with a loss of customers and income which will compel it to abandon its business on the premises leased from Seamerlin; (2) that Merlino had frequently absented himself when his presence was necessary for the transaction of Seamerlin’s business; (3) that he had attempted to borrow money from Seamerlin for personal uses despite the lack of any authorization for such withdrawals in the by-laws of the corporation, and had threatened the petitioner when the latter objected to those withdrawals; (4) that Merlino had refused to have a director’s meeting of Seamerlin to discuss the alleged difficulties caused by Merlin Enterprises, Inc.; (5) that on their last meeting in May, 1952, and over the telephone Merlino had used vile and abusive language and had threatened bodily harm to the petitioner ; (6) that Merlino had been confined to a hospital for the mentally ill since June, 1952, and had been adjudicated an incompetent and Bartolo Merlino had been appointed his committee on October 1,1952; and (7) that the committee is likewise unable to agree with the petitioner, and thus the deadlock between the directors will and does continue.

The answer, after denying upon information and belief the pertinent portions of the petition, alleges, in substance, that the dissolution is sought in bad faith in order that Merlino may be ousted from Seamerlin and that Merlin Enterprises, Inc., may be evicted and the space rented to the amusement arcade at a substantial profit.

The case came on before a learned Justice at Special Term, who referred the “ issues as to the dissolution of this corporation ” to a nonofficial Referee “ to hear the facts and make his report to the Court * * After hearings which extended over a period of more than two months, the Referee filed his report in which he found, among other findings, that: The facts do not disclose such discordant interests and irreconcilable difference resulting in a paralyzing failure of management necessary to a dissolution.” The Referee further found that “ dissolution would not be beneficial to the stockholders ” of Seamerlin. He therefore reported that the petition for dissolution should be denied. On the basis of that report and pursuant to section 116 of the General Corporation Law, a motion was made by the committee, and opposed by the petitioner-respondent, for a final order denying dissolution. The learned appointing Justice, however, disagreed with the Referee’s finding that the dissolution would not be beneficial to the stockholders. He therefore denied the committee’s motion, and entered a final order granting dissolution, writing an opinion in which he said: The referee has no power to make findings of fact on a reference to merely take testimony nor may conclusions of law be stated by the referee in such a reference (76 C. J. S., sec. 137, p. 259). Where the referee in a reference to hear and report exceeds his authority by reporting conclusions in addition to the facts, the court may reject the former and find the issues on the facts reported (76 C. J. S., sec. 132, p. 258).”

The major issue presented by this appeal is whether Special Term could properly deny the motion of the committee for a final order denying dissolution, in light of the findings of fact made by the Referee that dissolution would not benefit the stockholders, and' that there was no ‘ paralyzing failure of management ”.

Section 103 of the General Corporation Law, pursuant to which this proceeding was commenced, reads as follows: “ Unless otherwise provided in the certificate of incorporation, if a corporation has an even number of directors who are equally divided respecting the management of its affairs, or if the votes of its stockholders are so divided that they cannot elect a board of directors, the holders of one-half of the stock entitled to vote at an election of directors may present a verified petition for dissolution of the corporation as prescribed in this article ” (as amd. by L. 1944, ch. 176, § 2; L. 1951, ch. 717, § 3, eft. Sept. 1, 1951).

In the present case there were but two directors on the board of Seamerlin. It should be noted, however, that the Referee found that * * * the contention that the votes of the stockholders are so divided that they cannot elect a Board of Directors falls in view of the fact that a formal meeting and attempt to elect a full Board of Directors was never called by the president although he had the power to call such a meeting ”.

The Special Term Justice had the power to make an order under section 106 of the General Corporation Law if in his discretion a hearing on the facts was required under the circumstances presented to him. At that time under the statute he could hear and determine the facts himself or he could send the matter to a referee to hear and determine the facts. The statute in plain words says just that. It reads as follows: “ § 113. Hearing. At the time and place specified in the order, or at the time and place to which the hearing is adjourned, the court, or the referee, must hear the allegations and proofs of the parties, and determine the facts.”

Whether the court hears and determines the facts, or the referee does, made no difference to the Legislature because in either event the legislators in protecting their creature-corporatian from extinction through dissolution, made certain that the parties must have a Supreme Court Justice determine the law question of whether the facts as found whether by judge or referee justified dissolution as a matter of law. Determination of facts the legislators were willing to permit a referee to make, but when it came to a legal determination as to whether the facts found justified dissolution, that was another matter and the legislators required that that be done by a court.

The way the Legislature set this proceeding up makes this so clear. It does not matter whether the court finds the facts or the Referee finds the facts under section 114. They stand equal as the Legislature provided for this proceeding. Thus section 114 reads: § 114. Decision. The decision of the court, or the report of the referee, must be in writing and must be made and filed with all convenient speed * * *.” Even though the court finds the facts itself, it must file its decision; but even then it may not sign an order based upon its own decision until a motion therefor has been made.

Then we come to section 116, where again the Legislature provided for a motion for a final order to be made whether upon the report of the referee or the decision of the court. In either case, it must be upon motion. This is unusual. Quite clearly this is not a situation where as part of a motion the court uses a referee to hear some facts for the court’s enlightenment and as a timesaver. Section 116 in its entirety reads as follows: ‘ ‘ § 116. Application for order. Where the hearing is before a referee, a motion for a final order must be made to the court, upon notice to each party to the proceedings, who has appeared therein. The notice of motion may be served as prescribed in the civil practice act and the rules of civil practice for the service of papers upon an attorney. Where the hearing is before the court, a motion for a final order may be made immediately, or at such time and upon such notice, as the court prescribes. ’ ’

The court made its order pursuant to the authority granted to it by section 106 and the Special Term Justice could not rewrite the statute nor construe his own order as he might wish regardless of the limitations put upon his act by statute. This was an appointment of a referee to hear and determine facts under a special statute regardless of what words Special Term may have used in its order. The General Term laid down that rule in McCleary v. McCleary (30 Hun 154, Learned, P. J.). The pertinent statute, and not the form of the order controls. (Matter of Cartier v. Spooner, 118 App. Div. 342; Matter of Ney Co., 114 App. Div. 467; Matter of Ginsburg [Adelson], 191 Misc. 188; Wacenske v. Merchants Despatch Transp. Co., 237 App. Div. 868.)

In other words, the Special Term Justice could decide whether he would determine the facts or whether he would have a referee pass upon them within the terms of the statutory grant of power and authority in the premises. When he did that and signed an order, as provided in section 113, that was a judicial act and he could not later review that act, change his mind and then determine that he was going to be the fact-finder. He was functus officio as to that judicial act and determination. Review of his act and of the findings of the Referee must be by the Appellate Division. (Matter of Kling, 60 App. Div. 512; and see annotations in 10 A. L. R. 526; 67 A. L. R. 828; 126 A. L. R. 956; People ex rel. Hirschberg v. Orange Co. Ct., 271 N. Y. 151.)

We may not construe the act of the Special Term Justice appointing the Referee as an ordinary appointment to hear and report when the legislative authority for the appointment was one to hear and determine facts under section 113. The appointment of the Referee was a judicial act provided for with limitations by the Legislature. The Referee, if one were appointed, was to have certain functions and powers. So was the court, and each was to function accordingly. Since that is so, then the review of the facts as found by the Referee and of the law as pronounced by the court upon those facts is for the Appellate Division, the court of review for Special Term’s judicial actions. (Herpe v. Herpe, 225 N. Y. 323; see, also, Ring & Son v. Winola Worsted Yarn Co., 228 N. Y. 127; Corr v. Hoffman, 256 N. Y. 254; Schenectady Trust Co. v. Emmons, 290 N. Y. 225.)

There were three questions of fact presented in the present case: (1) were the directors of Seamerlin unable to agree on a matter of corporate management; (2) would dissolution be non-injurious to the public, and (3) would dissolution be beneficial to the shareholders (see Matter of Radom & Neidorff, Inc., 307 N. Y. 1; Matter of Cantelmo [Brewer], 275 App. Div. 231). All three questions must be answered in the affirmative before a dissolution will be warranted or may be ordered. (See General Corporation Law, §§ 103, 117.) Two of them were decided adversely to petitioner by the Referee.

It is unnecessary at this time, however, to consider the first two questions which the Referee was called upon to decide, inasmuch as there was error of law on the part of both Special Term and the Appellate Division with regard to the third question — whether or not dissolution would be beneficial to the shareholders.

On that issue of fact the Referee wrote the following: “ The business of the corporation has been carried on. Even after Merlino became incompetent the business was carried on by Searing, as agent. Dissolution would involve losing the profits of the sub-leases since a sale of the leases might bring in little, if anything. On the whole, therefore, dissolution would not be beneficial to the stockholders.” (Emphasis supplied.)

There was, therefore, an express finding that the incompetent and the petitioner would not be benefited by dissolution of Seamerlin. The Special Term Justice, however, wrote in his opinion that: “ * * * it is the considered opinion and judgment of the court that it is in the best interests of the corporation, the stockholders and the creditors that such dissolution be decreed.”

Whether or not the stockholders would be benefited by dissolution was, as stated above, a question of fact to be determined by the Referee upon evidence before him. There was evidence from which the Referee could make a finding that the stockholders would not be benefited, viz., that the corporation was making a profit and that a sale of Seamerlin’s lease at public auction would probably not produce much cash, if any. Real estate appraisers were called by petitioner and respondent to testify to what the lease of Seamerlin ‘1 would bring in if the leases were offered for sale at public auction in the event of dissolution ”. The respondent’s appraiser testified that only a man who knew nothing about real estate would buy the lease ’ ’. The petitioner’s appraiser fixed a possible figure of between $5,000 and $10,000 net profit but said that the purchaser would be a speculator, and not an investor, who would have to deposit $10,000 as security. Since there was this evidence upon which the Referee could properly make a finding that dissolution would not benefit the stockholders, Special Term could not reverse that finding as a matter of law; nor could that court review it as a question of fact because this was properly a reference to hear and determine issues of fact. The Referee’s finding of nonbeneficial results of dissolution to shareholders was conclusive upon Special Term, and the only order that that court could properly make in such a case was a final order denying dissolution as a matter of law in view of that finding of fact by the Referee. A reversal upon the facts was for the Appellate Division if there was to be such a reversal.

Special Term, however, reversed that negative finding of fact by the Referee and substituted therefor a new positive one, viz., that dissolution would benefit the shareholders. Upon that new finding of fact the Special Term ordered dissolution. The Appellate Division has affirmed the order of Special Term, without opinion. Both courts below, therefore,were incorrect inasmuch as one of the essential elements for a dissolution under section 103 of the General Corporation Law — i.e., a finding that the stockholders would be benefited thereby (General Corporation Law, § 117) —was lacldng since there was no power in the Special Term to make that finding in the face of a contrary finding by the Referee. The Appellate Division should have remitted the matter to Special Term for the entry of an appropriate order. After that had been done an appeal to the Appellate Division on the facts would have been proper.

The order of the Appellate Division and that of Special Term should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion.

Desmond, J.

(dissenting). We cannot agree to this decision since it means no less than this: that, in corporation dissolution proceedings, the court is forbidden, as in no other special proceeding or motion practice, to use the services of a referee to take and report the facts only, without making any binding determination thereon. Even if the various provisions of article 9 of the General Corporation Law can, possibly, be read to require that all references in such proceedings be to hear and determine, that is not the only possible reading of those statutes. We should not so read them as to produce a result the Legislature could not reasonably have intended.

The order should be affirmed, with costs.

Lewis, Ch. J., Dye and Van Voorhis, JJ., concur with Conway, J.; Desmond, J., dissents in an opinion in which Fuld and Froessel, JJ., concur.

Orders reversed, etc.


author: Froessel, J.

text:
    William A. Slater et al., as Trustees under the Will of William A. Slater, Deceased, Respondents, v. Gulf, Mobile and Ohio Railroad Company et al., Appellants.
    Argued May 18,1954;
    decided July 14, 1954.

      Edward K. Hanlon and Milton Weiss for Gulf, Mobile and Ohio Railroad Company, appellant.

      William R. Meagher, Theodore Kiendl and Samuel J. Murray for Chicago, Burlington & Quincy Railroad Company, appellant.
    I. Since the theory of the second count in Action No. 1 is the same as the theory of Action No. 2, the summary judgment dismissing the complaint in Action No. 1 renders the complaint in Action No. 2 res judicata. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Werring v. Selig, 241 App. Div. 67, 266 N. Y. 566.) II. Assuming that the second count in Action No. 1 is different from the cause of action asserted in Action No. 2, the finding of fact made in Action No. 1 that the defendants have not been unjustly enriched renders the complaint in Action No. 2 res judicata. There may be no restitution in the absence of unjust enrichment. (Schank v. Schuchman, 212 N. Y. 352; Atlantic Coast Line v. Florida, 295 U. S. 301; Stone v. White, 301 U. S. 532; Milman v. Denniston, 271 App. Div. 988, 271 App. Div. 1024, 297 N. Y. 1038; Weiss v. Johnson, 206 F. 2d 350; Smith v. Kirkpatrick, 305 N. Y. 66; Pagano v. Arnstein, 292 N. Y. 326; Elna Realty Co. v. Mamaquarro Apts. Corp., 234 App. Div. 105; Case v. Hardenbrook, 238 App. Div. 169.)

      Watson Washburn and William P. Jones for respondents.
    I. The discretionary withholding of permission to amend the former complaint did not enlarge the question decided. (Lam

      phere v. Lang, 213 N. Y. 585; Cohen v. City Co. of N. Y., 283 N. Y. 112; Werring v. Selig, 241 App. Div. 67, 266 N. Y. 566; Brenner v. Title Guar. & Trust Co., 276 N. Y. 230.) II. The present individual action for restitution is not barred by the prior dismissal of a class.action for unjust enrichment. (Pagano v. Arnstein, 292 N. Y. 326; Elna Realty Co. v. Mamaquarro Apts. Co., 234 App. Div. 105; Case v. Hardenbrook, 238 App. Div. 169; Phillips v. Conklin, 58 N. Y. 682; Johnson v. Brooks, 93 N. Y. 337.)
   Froessel, J.

By our affirmance of the Appellate Division in the previous action (Slater v. Gulf, Mobile & Ohio R. R. Co., 304 N. Y. 636, affg. 279 App. Div. 166), we agreed that the letters of May 25, 1945, did not constitute a contract, and that there was no factual basis for the second cause of action either on the theory of fraud or unjust enrichment. Our determination was not based upon any alleged technical defect in pleading, nor upon a failure to make a formal demand for relief impossible to grant in any event, but rather upon the merits, which were fully argued before us. There being no factual basis for unjust enrichment, there is no basis for restitution (Milman v. Denniston, 271 App. Div. 988, motion for leave to appeal denied 297 N. Y. 1038; Schank v. Schuchman, 212 N. Y. 352; Stone v. White, 301 U. S. 532; Atlantic Coast Line v. Florida, 295 U. S. 301, 309; Restatement, Restitution, § 1).

In our opinion, the complaint at bar presents no new issues, and, as the parties to this action were parties to Action No. 1, the complaint cannot survive the motion to dismiss upon the ground that the prior judgment is res judicata (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Werring v. Selig, 241 App. Div. 67, affd. 266 N. Y. 566).

The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the complaint dismissed. The question certified should be answered in the affirmative.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Van Yooehis, JJ., concur.

Order reversed, etc.


author: Dye, J. Fuld, J.

text:
    Irving S. Dick, Plaintiff, v. Sunbright Steam Laundry Corp., Defendant, and Third-Party Plaintiff-Respondent. City of New York, Third-Party Defendant-Appellant.
    Argued April 7, 1954;
    decided July 14, 1954.

      Adrian P. Burke, Corporation Counsel {Leo Sachnoff, Harry E, O’Donnell and Benjamin Offner of counsel), for appellant.
    I. Whether or not the city, as landlord, agreed with its tenant to keep in repair the sewers on the premises, the city as landlord is not “ liable over ” to its tenant, under any theory of law, for damage to the adjoining premises caused by any alleged defects in such sewers. (Wolf v. La Rosa, 272 App. Div. 932, 298 N. Y. 597; Cloud v. Martin, 273 App. Div. 769; Green v. Hudson Shoring Co., 191 Misc. 297; Fox v. Western N. Y. Motor Lines, 257 N. Y. 305; Verder v. Schack, 191 Misc. 935; Del Longo v. Bennett-Brewster Co., 192 Misc. 426; Clarke v. Phelps, 215 App. Div. 500; Jameson v. Keystone Warehouse Co., 210 App. Div. 212; Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36; Employers’ Liability Assur. Corp. v. New York Linen Supply & Laundry Co., 239 N. Y. 560; Manhattan Ry. Co. v. Cornell, 54 Hun 292, 130 N. Y. 637; Cullings v. Goetz, 256 N. Y. 287.) II, A claim on which an action against the city is founded must be presented to the comptroller for adjustment at least thirty days before commencement of the action. The tenant’s failure to allege such presentation requires a dismissal of the complaint. (Reining v. City of Buffalo, 102 N. Y. 308; Foley v. Mayor of City of N. Y., 1 App. Div. 586; Venditti v. City of New York, 187 Misc. 84.)

      Samuel Wolían for respondent.
    I. The City of New York is properly brought in as a third-party defendant herein. (Condon v. Associated Hosp. Service, 287 N. Y. 411; McFall v. Compagnie Mar. Belge, 304 N. Y. 314; Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, 298 N. Y. 686; Cullings v. Goetz, 256 N. Y. 287; Sterger v. Van Sicklen, 132 N. Y. 499.) II. It is not necessary to allege in the complaint that the claim was presented to the comptroller for adjustment prior to the commencement of suit. (Flaxman v. City of New York, 98 Misc. 88; Smith v. City of New York, 88 App. Div. 606.)
   Dye, J.

The City of New York appeals to this court by permission of the Appellate Division, First Department, from its nonunanimous order affirming an order of the Supreme Court, New York County, denying the city’s motion to dismiss the amended third-party complaint for failure to state a cause of action. The following question has been certified: “ Was the order of Special Term proper in denying the third-party defendant’s motion to dismiss the amended third-party complaint herein pursuant to Rule 106 of the Rules of Civil Practice on the ground that it appears on the face thereof that the amended third-party complaint does not state facts sufficient to constitute a cause of action? ”

The enactment of section 193-a of the Civil Practice Act has greatly simplified third-party practice but has not in any way changed underlying principles of tort liability. Under it the joinder of a nonparty is permitted whenever he is or may be liable to the defendant for all or part of plaintiff’s claim against him (Wolf v. La Rosa & Sons, 272 App. Div. 932, affd. 298 N. Y. 597).

In the third-party amended complaint now before this court, it is alleged that at all times mentioned the city owned, controlled and maintained premises known as 522 East 119th Street, in the Borough of Manhattan, City and State of New York, and all the sewer gutters, sewer mains and sewer pipes of said premises ’ ’ and that under the terms of its lease with the defendant laundry it covenanted to “ maintain and keep in good condition and repair, all the sewer gutters, sewer mains and sewer pipes in * * * [said] premises ” and that it failed to do so following due and timely notice-and demand.

Significantly enough, there is no allegation of any lease provision that the city as landlord had retained the right to re-enter the premises for the purpose of making repairs or that it had ever done so. It has long been the rule that a landlord’s covenant to repair, standing alone, imposes upon the landlord no liability in tort either to the tenant or a third party. Such a liability is an incident to occupation and control (Restatement, Torts, § 357), which, is not deemed reserved by a covenant to repair (Cullings v. Goetz, 256 N. Y. 287), nor may it be treated as a contract of indemnity unless specifically so stated — and here it is not (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36). Indemnification against one’s own negligence must be clearly expressed (Employers Liability Assur. Corp. v. New York Linen Supply & Laundry Co., 239 N. Y. 560; Manhattan Ry. Co. v. Cornell, 54 Hun 292, affd. 130 N. Y. 637).

According to the complaint of the original plaintiff herein, the plaintiff alleges that his injuries were due to the negligent and careless maintenance and operation of the laundry machinery by reason of defective plumbing causing the seepage of waste water into his premises, inflicting the damage complained of and constitutes a nuisance, the continuance of which should be restrained and enjoined. Assuming this to be true — for indeed we must on a motion of this sort — that allegation casts the third-party plaintiff as original defendant in the roll of an active tort-feasor and, as such, is not in a position to compel contribution or indemnification by the city, absent an agreement so to do. Bead in such light, the third-party complaint fails to state a cause of action against the city on any theory and must be dismissed.

We pass on no other question.

The order of the Appellate Division and that of Special Term should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein. The question certified is answered in the negative.

Fuld, J.

(dissenting). Appellant city seeks a reversal upon two grounds — first, that the third-party complaint is insufficient because it omits to allege that the third-party plaintiff’s claim was presented to it and, second, that said third-party complaint fails, in any event, to state a cause of action against it.

Since the majority has found it unnecessary — in the view it has taken — to consider the first ground, we deem it sufficient simply to note our opinion that the provision of the Administrative Code, requiring presentation of claims ” against the City of New York to its comptroller “ for adjustment ” at least thirty days ” prior to commencement of suit (Administrative Code of City of New York, § 394a-1.0, subd. a), is not, and cannot, in the very nature of things, be applicable to a third-party action, where the liability of the city, brought in as the third-party defendant, is necessarily contingent and dependent Upon the outcome of the primary action against the third-party plaintiff.

The court has discussed the city’s second contention, and to that we turn. While it may he true, as the opinion of the majority declares, that a landlord is not liable to a tenant for damages caused by a failure to repair, absent his control of the premises, that cannot help appellant, for the third-party complaint here charges in so many words such control by the landlord. It is expressly alleged that appellant city u owned, controlled and maintained premises known as 522 East 119th Street * * # and all the sewer gutters, sewer mains and sewer pipes of said premises. ” It is also alleged that under the provisions of its lease with the tenant the city covenanted to maintain and keep in good condition and repair such gutters, sewers and pipes, that it failed to do so and that its failure caused the damage to the original plaintiff’s premises.

A third-party suit, the applicable statute provides, ‘ must be related to the main action by a question of law or fact common to both controversies ” (Civ. Prac. Act, § 193-a, subd. 1), and, accordingly, we examine the pleadings to determine whether they disclose that common ” question. The allegation that the city “ controlled ” the premises and the sewer mains and sewer pipes is certainly more than enough to create an issue of fact as to its liability for failure to repair: the question of such liability is ‘ common to both controversies ’ ’. And, in view of the complaint’s explicit recital of control in the landlord, it is of no consequence that there is no allegation that the landlord, in connection with its covenant to repair, “ had retained the right to re-enter the premises ” in order to make repairs, for such a right is but one of the indicia of control.

Nor does the fact that the original complaint recites that the defendant, the third-party plaintiff, “ operated and was in possession of ’ ’ the premises in question warrant the conclusion, at this pleading stage, that the third party had such possession or control of the sewer mains and sewer pipes as to render it jointly liable with the city and thereby prevent a recovery over. Since, then, the third-party plaintiff may be able to prove that the city alone caused the damage, it was privileged to bring in the city as“a person not a party to the [original] action, who is or may be liable to * * * [it] for all or part of the plaintiff’s claim against ” it (Civ. Prac, Act, § 193-a, subd. 1).

We would affirm the order of the Appellate Division.

Conway, Froessel and Van Voorhis, JJ., concur with Dye, J.; Fuld, J., dissents in an opinion in which Lewis, Ch. J., and Desmond, J., concur.

Orders reversed, etc.


author: Dye, J. Van Voorhis, J.

text:
    In the Matter of the Claim of Alma Perry, Respondent, against Town of Cherry Valley et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 21, 1954;
    decided July 14, 1954.

      A. E. Gold and Sterling P. Harrington for appellant.
    I. The accident occurred during private work with town equipment which neither the town nor its superintendent of highways had a legal right to undertake or perform. (City of New York v. Village of Lawrence, 250 N. Y. 429; Whittaker v. Village of Franklinville, 265 N. Y. 11; Wells v. Town of Salina, 119 N. Y. 280; Matter of Brown v. Trustees, Hamptonburg School Dist., 303 N. Y. 484; Holroyd v. Town of Indian Lake, 180 N. Y. 318; Mayor v. Ray, 19 Wall. [U. S.] 468; Tooly v. Town of Wilna, 148 Misc. 611; Wenk v. City of New York, 171 N. Y. 607; Tompkins v. Pallas, 47 Misc. 309; Vilias v. Featherson, 94 App. Div. 259.) II. The award cannot stand as a matter of law. (Matter of Clarke v. Town of Russia, 283 N. Y. 272; Village of Fort Edward v. Fish, 156 N. Y. 363; Ulrich v. Terminal Operating Corp., 186 Misc. 145, 271 App. Div. 930; Seif v. City of Long Beach, 286 N. Y. 382; Kramrath v. City of Albany, 127 N. Y. 575; McDonald v. Mayor of City of N. Y., 68 N. Y. 23; Peterson v. Mayor of New York, 17 N. Y. 449; Augustine v. Town of Brant, 249 N. Y. 198; O’Donnell v. City of Syracuse, 184 N. Y. 1; Downing v. City of New York, 219 App. Div. 444, 245 N. Y. 597; Smith v. City of Rochester, 76 N. Y. 506.)

      Chester J. Winslow, Jr., for claimant-respondent.
    The decedent, although he may have been performing an illegal act in behalf of and at the instance of the town board of the Town of Cherry Valley at the time he was killed, was at that time an employee of the Town of Cherry Valley, New York, and, as such, comes within the provisions of the Workmen’s Compensation Law, notwithstanding the fact that such act may have been in violation of a constitutional provision. (Matter of Dann v. Town of Veteran, 254 App. Div. 462, 278 N. Y. 461; Ulrich v. Terminal Operating Corp., 186 Misc. 145, 271 App. Div. 930.)

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown, Roy Wiedersum and Gilbert M. Landy of counsel), for Workmen’s Compensation Board, respondent.
    The award of death benefits made by the Workmen’s Compensation. Board was valid and proper. (Matter of Enright v. Asplundh Tree Expert Co., 297 N. Y. 452; Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443; Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85; Matter of McCarthy v. Rem

      ington Rand, Inc., 275 App. Div. 866, 300 N. Y. 715; Matter of Motto v. Cosmopolitan Tourist Co., 278 App. Div. 597, 302 N. Y. 950; Matter of Block v. Camp Shows, Inc., 272 App. Div. 980, 297 N. Y. 1032; Matter of Lewis v. Knappen Tippetts Abbett Eng. Co., 304 N. Y. 461; Matter of Piusinski v. Transit Valley Country Club, 283 N. Y. 674; Matter of Dodge v. Wm. J. Keller, Inc., 304 N. Y. 792; Matter of Brown v. United Services for Air, Inc., 298 N. Y. 901; Matter of Burns v. Merritt Eng. Co., 302 N. Y. 131; Hemmingway v. Town of Dannemora, 269 App. Div. 221; Ulrich v. Terminal Operating Corp., 186 Misc. 145, 271 App. Div. 930; Matter of Clarke v. Town of Russia, 283 N. Y. 272; Matter of Swihura v. Horowitz, 242 N. Y. 523; Augustine v. Town of Brant, 249 N. Y. 198; Matter of O’Bryan v. Town of Jewett, 296 N. Y. 785; Matter of Dann v. Town of Veteran, 278 N. Y. 461.)
   Dye, J.

The workmen’s compensation committee of the Board of Supervisors of the County of Otsego appeal to this court by our permission in order to test the propriety of an award of compensation benefits to the widow of Earl Perry, deceased, formerly superintendent of highways of the Town of Cherry Valley.

According to the affirmed findings of fact, the decedent sustained accidental injuries resulting from his employment while working for his employer and while using town equipment in the blasting of rock on privately owned lands; the work he was performing was incidental to his employment and arose out of and in the course of his employment.

While no definitive finding of fact was made, it is undisputed that the practice of blasting of rocks on privately owned lands had been customary for at least twenty years, for which the town collected a fee. In this instance the fee was to be $5.

The sole question is whether such circumstances operated to render the Workmen’s Compensation Law inapplicable. We think not. For purposes of compensation the law makes no distinction between a public and private employment. Municipal fault or liability is not at issue (N. Y. Const., art. I, § 18; Workmen’s Compensation Law [L. 1913, ch. 816, as re-enacted and amd. by L. 1914, ch. 41, and L. 1922, ch. 615]). An employer’s liability to pay compensation depends on the employment and the right to payment depends on a work-connected injury (Workmen’s Compensation Law, § 2, subds. 7-8).

The town is a municipal corporation (Town Law, § 2) possessing only such powers and authority as the Legislature confers (Whittaker v. Village of Franklinville, 265 N. Y. 11) and as such is instituted for public purposes only (Mayor v. Ray, 19 Wall. [U. S.] 468; Wells v. Town of Salina, 119 N. Y. 280).

For purposes of compensation a municipal corporation is an employer (Workmen’s Compensation Law, § 2, subd. 3) and when its employees are injured in a hazardous occupation is liable for compensation (Workmen’s Compensation Law, § 3, subd. 1, groups 3-13). We have held that a town superintendent of highways is within the purview of the Workmen’s Compensation Law (Matter of Dann v. Town of Veteran, 278 N. Y. 461) and this is so even though he is an officer of the town (Town Law, § 20, subd. 1, par. [b]). Here the town secured compensation for its injured employees under a mutual self-insurance plan (Workmen’s Compensation Law, § 50, subd. 3-a) from which the decedent was not excluded.

The fact that the decedent was town superintendent of highways and, as such, had no authority to enter into an illegal contract (Town Law, § 32; Matter of Clarke v. Town of Russia, 283 N. Y. 272) does not prevent treating him as an employee of the town for purposes of compensation (Matter of Dann v. Town of Veteran, supra). In Matter of Clarke v. Town of Russia (supra) compensation benefits were denied the injured claimant because the contract of employment was illegal in its inception, it being contrary to public policy and void for a superintendent of highways to employ a member of the town board (Town Law, § 105; Matter of Swihura v. Horowitz, 242 N. Y. 523).

Here, according to the uncontradicted evidence, the fatal injuries were directly attributable to the employment status, the legality of which is nowhere challenged (cf. Ulrich v. Terminal Operating Corp., 186 Misc. 145, affd. 271 App. Div. 930).

The order appealed from should be affirmed, with costs.

Van Voorhis, J.

(dissenting). Notwithstanding that the deceased town superintendent of highways of the Town of Cherry Valley was in good faith using the town’s blasting equipment for the improvement of private property in consideration of payment by the property owner to the town, such an operation was beyond his powers as a public officer and illegal (Highway Law, §§ 140, 142, 142-b, 142-c, 142-d; Matter of Niland v. Bowron, 193 N. Y. 180; Smith v. City of Rochester, 76 N. Y. 506, 509; Smith v. Smythe, 197 N. Y. 457; 2 Op. St. Comptroller, 1946, p. 43; 3 Op. St. Comptroller, 1947, pp. 234, 235; 4 Op. St. Comptroller, 1948, p. 338). This follows from the established rule that a town is a creature of .the State and has only such powers and authority as are conferred upon it by the Legislature (Wells v. Town of Salina, 119 N. Y. 280, 287; Holroyd v. Town of Indian Lake, 180 N. Y. 318, 325; McQuillan on Municipal Corporations [3d ed.], § 10.31). Custom confers no additional power upon a municipal corporation where there is no ambiguity to be resolved by the practical construction of a statute (McQuillan on Municipal Corporations [3d ed.], § 10.17). Reimbursement to the municipality of the cost of the service does not convert it from a private purpose to a public purpose (Miller, Local Government, 29 N. Y. U. L. Rev. 425, 539, Feb., 1954). It follows that although a town superintendent of highways may become an employee of the town for the purposes of the Workmen’s Compensation Law (Matter of Dann v. Town of Veteran, 278 N. Y. 461), the accident which caused his death must have arisen out of and in the course of his employment (Workmen’s Compensation Law, § 2, subds. 7, 8). In order to recover ££ The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work.” (Matter of Heitz v. Ruppert, 218 N. Y. 148, 152.) The taxpayers of a toAvn are not to be charged with the payment of workmen’s compensation, nor of increased premiums if the town is insured, in event of an accident to this public officer which occurred at a time when he had departed from the scope of his employment, and was engaged in a project which was foreign to the powers and duties vested by law in him or in the town. " No power is vested in the town board to use highway machinery for private individuals by statute or otherwise and such a use would not in any sense be a town purpose.” (3 Op. St. Comptroller, 1947, pp. 234, 235.) Section 32 of the Town Law limits the powers of the town superintendent of highways to duties consistent with law, even in case of acts which he has been directed to perform by the town board. It must be borne in mind that neither by virtue of his office nor by resolution of the town board could he be authorized to act in an official capacity, beyond the powers granted by statute. When he ceases to act in his official capacity, he loses his status as an employee within the coverage of the Workmen’s Compensation Law, inasmuch as that covers him only as town superintendent. When he contracted to do private work for a private individual, in a legal sense he ceased to act as the superintendent of highways of the Town of Cherry Valley. This is not a situation where some statute has been broken affecting the manner of performance of the work (Messersmith v. American Fidelity Co., 232 N. Y. 161; Ulrich v. Terminal Operating Corp., 186 Misc. 145, affd. 271 App. Div. 930). Here the violation of statute consisted in the nature of the entire operation; it was illegal for him to have undertaken this work in the beginning, which he is chargeable with having known since he is presumed to have known the statutory law affecting the town and his position (City of Buffalo v. Hawks, 226 App. Div. 480). Therefore this accident cannot be held, in the language of Matter of Heitz v. Ruppert (supra, p. 152), to have been “ one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work.” The taxpayers of the town are responsible for the consequences of accidents happening to him while acting as town superintendent of highways, but not when he has departed from that role, however commendable this man’s intentions may have been. There is no ground for liability more than would have been the case if he had lost his life while cultivating his neighbor’s field or repairing his neighbor’s house.

There is little doubt that the Town of Cherry Valley could not have been held liable if this blasting had negligently injured third persons, inasmuch as if negligent acts are ultra vires in such a sense as to have been committed in an operation undertaken wholly without the scope of the corporate powers of the municipality, it is not answerable for the consequences, “ although the persons causing the work to be done were its officers and agents, and assuming to act as such in doing it.” (Augustine v. Town of Brant, 249 N. Y. 198, 203.) The reason is that decedent would not have been acting within his function as a public officer (Village of Fort Edward v. Fish, 156 N. Y. 363, 371). Section 29.10 of McQuillan on Municipal Corporations (3d ed., Vol. 10) summarizes this principle as follows (pp. 196-197): If a contract is ultra vires it is wholly void and (a) no recovery can be had against the municipality thereon; (b) there can be no ratification, except by the legislature; (c) the municipality cannot be estopped to deny the validity of the contract; and (d) there can be no recovery on an implied contract, although it has been executed and the municipality has received the benefit of the contract.”

This rule has been applied in denying a workmen’s compensation award to a town superintendent of highways for disability arising from an accident which occurred while he was working under an illegal contract of employment (Matter of Clarke v. Town of Russia, 283 N. Y. 272).

It is immaterial that the appellant is the workmen’s compensation committee of the County Board of Supervisors; for the purposes of this appeal, its status is the same as that of the Town of Cherry Valley, whose taxpayers must pay the award or defray the cost of providing this form of insurance.

The order of the Appellate Division and the award of the Workmen’s Compensation Board should be reversed and the claim dismissed, with costs.

Lewis, Ch. J., Conway, Desmond, Fuld and Froessel, JJ., concur with Dye, J.; Van Voorhis, J., dissents in opinion.

Order affirmed.