author: CoNway, J. Ftjld, J. DesmoNd, J.

text:
    The People of the State of New York ex rel. Alphonse L. Appellant, against J. V. Jackson, as Warden of Clinton Prison, et al., Respondents.
    Argued April 19, 1948;
    decided October 14, 1948.

      Thomas A. Robinson for appellant.
    I. A proceeding by habeas corpus is the proper remedy for one circumstanced as is relator. (People ex rel. Marcley v. Lawes, 254 N. Y. 249; People ex rel. Sloane v. Lawes, 255 N. Y. 112; People ex rel. Garollo v. Brophy, 294 N. Y. 540; People ex rel. Newman v. Foster, 297 N. Y. 27; People ex rel. Milton v. Jackson, 297 N. Y. 708; People ex rel. Mueciolo v. Snyder, 295 N. Y. 866; People ex rel. Romano v. Brophy, 280 N. Y. 181; People ex rel. Jones v. Brophy, 287 N. T. 687; People ex rel. Frey y. Warden, 100 N. Y. 20; Matter of Albiniano, 123 A. L. R. 441; People ex rel. Batista v. Christian, 249. N. Y. 314; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; Matter of Parnell, 200 P. 456.) II. The purported conviction of relator in 1925 of grand larceny, third degree, was not a conviction for a felony and relator-was illegally sentenced as a fourth felony offender in 1942. By section 7 of chapter 254 of the Laws of 1924, there was conferred upon the New York City Children’s Courts exclusive jurisdiction of offenses committed by children under the age of sixteen, except capital offenses. Therefore, the Kings County Court did not have jurisdiction of the offense or of the person of relator. (People v. Murch, 263 N. Y. 285; People v. Roper, 259 N. Y. 170; People ex rel. Jones v. Brophy, 287 N. Y. 687.)

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Herman N. Harcourt of counsel), for respondent.
    I. Special Term hearing a writ of habeas corpus has no authority to direct the sentencing court to correct the sentence. Such action is not within the scope of a writ of habeas corpus. (People ex rel. Doyle v. Atwell, 232 N. Y. 96, 261U. S. 590; People ex rel. Hubert v. Kaiser, 206 N. Y. 46; Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131; Matter of Hogan v. N. Y. Supreme Court, 295 N. Y. 92; People ex rel. Bernoff v. Jackson, 269 App. Div. 580; People ex rel. Madden v. Foster, 271 App. Div. 809; Matter of Lyons v. Goldstein, 290 N. Y. 19; People ex rel. Carr v. Martin, 286 N. Y. 27; People ex'rel. Campiglia v. Jackson, 271 App. Div. 860.) II. Relator was over the age o'f sixteen years when he was convicted in 1925. (People ex rel. Wiegand v. Brophy, 261 App. Div. 877, 286 N. Y. 640; People ex rel. Tully v. Fallon, 73 App. Div. 471; Matter of Terwilliger v. Turk, 156 Mise. 246; People ex rel. Davis v. Jennings, 133 Mise. 538; People v. DeBellis, 87 Mise. 459, 168 App. Div. 905; Matter of Hogan v. Court of General Sessions, 296 N. Y. 1; People ex rel. Jones v. Brophy, 287 N. Y. 687; People v. Jones, 38 N. Y. S. 2d 207; Greene v. State, 101 Tex. Cr. Rep. 52; Bradley v. State, 215 Ala. 140.)
   CoNway, J.

We have presented to us for our consideration a petition for a writ of habeas corpus verified in April, 1946, together with the writ and the minutes of the hearing held thereon. The relator was sentenced as a fourth offender, pursuant to section 1942 of the Penal Law in June, 1942. The claim of the relator is that in September, 1925, at the time of the commission of the first of the four felonies of which he has been convicted, he was under the age of sixteen years and that therefore the County Court of Kings County was without jurisdiction to try or sentence him.

After the taking of testimony, which will later be quoted in full, Special Term sustained the writ and directed relator’s return to Kings County for resentence as a third felony offender. The Appellate Division reversed as a matter of law. We think the reversal was correct for two reasons, first, because there was no evidence before the court to justify the sustaining of the writ, and second, because the age of the relator was found as a fact by the trial court and such finding was not reviewable by habeas corpus.

1. The relator was examined as a witness in his own behalf at a hearing on the writ on June 17,1946. His testimony that he was then thirty-eight years of age completely disproved the allegations of his petition and established that he was more than sixteen years of age at the time of the commission of his first felony in September, 1925. The whole hearing consisted of nine questions and answers and it is as easy to quote them as to epitomize them. The hearing in full is as follows:

“ By the Court:

Q. What is your name? A. Alphonse Harrison.

Q. What was your father’s name? A. James Harrison.

Q. What was your mother’s name? A. Mary Harrison.

Q. Do you know where you were born? A. At Tucson, Arizona. ’ ’

Objection was made upon the ground that such testimony would be hearsay. There was no ruling and the examination continued.

Q. Is that the information that you have that you were born in Tucson, Arizona? A. Yes, sir.

Q. What is your age ? A. I am 38 now.

Q. Were you ever advised as to where your father was born? A. I could not say for sure, I was told he was bom in Tucson.

Q. Were you ever told where your mother was born? A. She was born in New Orleans, Louisiana.

Q. What was your mother’s maiden name? A. Mary Grant.”

That was the oral testimony. By that testimony relator affirmatively established that, since he was then, on June 17,1946, thirty-eight years of age, he was more than sixteen years of age in September, 1925, and there was no legal justification for sustaining the writ unless it may be found in the exhibits attached to the relator’s petition.

The only facts properly established by those exhibits in any way germane to any issue presented were that in November, 1925, the relator swore that he was twenty-one years of age, that he had been born in New Orleans, Louisiana, and that his mother was living; that in June of 1942, the relator swore that he had been born in Tucson, Arizona, that he was thirty-two years of age and that his mother was dead; that in January, 1946, there was filed in the office of the Arizona State Department of Health, Division of Vital Statistics, a “ DELAYED CERTIFICATE OF BIRTH ’ ’ subscribed by Mary H. Grant who November” 13, 1945, in Louisiana swore that she was the mother of the registrant, Alphonse L. Harrison, who had been born on October 23, 1909, in Tucson, Arizona. The abstract of the supporting evidence attached to the certificate shows two documents. The first is a baptismal record from St. Dismas, The G-ood Thief Church at Dannemora, where relator was baptized on November 26,1937. The other is a photostat application for social security account dated March 2, 1942. The State Registrar of Arizona certified under date of January 22,1946, that there was no prior certificate of birth of the registrant on record.

On that record there was no evidence to support the order sustaining the writ and it was properly reversed as a matter of law.

2. Before a prisoner may be sentenced to the New York State Reformatory at Elmira certain facts must be established. Section 2185 of the Penal Law reads as follows: “ Sentence of males between sixteen and thirty years -of age. A male between the ages of sixteen and thirty, convicted of a felony, who has not theretofore been convicted of a crime punishable by imprisonment in. a state prison, may, in the discretion of the-trial court, be sentenced to imprisonment in the Elmira reformatory, to be there confined under the provisions of law relating to that reformatory.” Thus one of the facts to be found by the trial court is that the prisoner is “ between the ages of sixteen and thirty (Penal Law, § 2185). The relator has furnished ns with his answers under oath to the trial court (McLaughliw, J.) pursuant to the questioning required by section 485-a of the Code of Criminal Procedure. That section reads as follows:

“ Examination of convict 'before sentence. It shall be the duty of the court in which any person shall be convicted of an offense punishable in a state prison, before passing the sentence therefor, to ascertain by the examination of such convict on oath, and in addition to such oath, by such other evidence as can be obtained, whether such convict had learned and practiced any mechanical trade, and in like manner such other facts tending, to indicate the causes of the criminal character or conduct of such convict, as to the court shall seem proper and desirable, and the court shall direct the clerk of the court to enter such of the facts so ascertained, and such other facts as to the court shall seem proper and desirable, upon the minutes of the court, and said clerk shall include a copy thereof in the certified copy of the sentence of such convict which shall be delivered to the sheriff of the county in which such conviction shall be had.” Among the answers so made by the relator to the court on November 23, 1925, were that he was twenty-one years of age and had previously been convicted of petit larceny in the same County Court and had served ninety days therefor. The trial court made a finding of fact under section 2185 of the Penal Law which was entered on the clerk’s minutes as required by section 485-a of the Code of Criminal Procedure as follows: “ The Court being satisfied that the said ALPHONSE HARRISON is 21 years of age and has not been previously convicted ■ and sentenced for a felony; WHEREUPON it is ORDERED AND ADJUDGED by the Court, that the said ALPHONSE HARRISON for the felony aforesaid whereof he is convicted, be imprisoned in the New York State Reformatory at Elmira, there to be dealt with according to law.”

Thus the relator’s age was one of the facts upon which depended the jurisdiction of the court to act for there may be no judgment of conviction without sentence. (People v. Harcq, 292 N. Y. 321, 325-326.) Since the court had jurisdiction of the person and of the subject matter and power to impose the particular sentence, the judgment of conviction is conclusive as to every fact necessarily found in rendering it. The trial court adjudicated the fact of age as a statutory prerequisite to passing sentence. The judgment of conviction so rendered, after the passage of the time allowed for motion and appeal, may not be collaterally attacked for error of fact or law in the exercise of jurisdiction where there is no lack of the requirements of due process. (People ex rel. Wachowicz v. Martin, 293 N. Y. 361, 364, 366; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131, 134-138; People ex rel. Carr v. Martin, 286 N. Y. 27; People ex rel. Bai v. Brophy, 286 N. Y. 585; People ex rel. Wiegand v. Brophy, 261 App. Div. 877, and cases cited, affd. 286 N. Y. 640; People ex rel. Stevens v. Morhous, 269 App. Div. 461, 462; People ex rel. Tully v. Fallon, 73 App. Div. 471, 473; People ex rel. Davis v. Jennings, 133 Misc. 538, and cases cited; Scott & Roe on Habeas Corpus, pp. 26, 27, 64, 294, 295, indicating cases to the same effect in Maine, Florida, Massachusetts, Michigan, New Jersey, Kansas, Minnesota and the Federal courts.)

See, also, the cases collected in People v. Jones (38 N. Y. S. 2d 207, at p. 211).

The general rule is stated as follows in 39 Corpus ’Juris Secundum, p. 456: “ Where the court had general jurisdiction of the cause and the person, error in the determination of questions of law- or fact on which its jurisdiction in the particular case depends is error in the exercise of jurisdiction, and, in accordance with the general rule, affords no ground for habeas corpus. This rule has been applied to findings as to the age, status, and domicile or residence of a person, and as to whether or not the offense was committed within the territorial jurisdiction of the court * *

It should be stressed that this is not a case where the petitioner “ alleges in his petition facts sufficient, if established, to show that the judgment fails to satisfy the requirements of due process ” (Matter of Morhous v. New York Supreme Court, 293 N. Y. 131, 140, supra) for there is no such factual allegation of failure of due process under either State or Federal Constitution. (Matter of Morhous v. New York Supreme Court, supra; Bute v. Illinois, 333 U. S. 640.) Moreover, the relator was represented hy Philip Jones as counsel on his trial and testified in his own behalf as is disclosed by the clerk’s minutes. (People v. Travis, 257 N. Y. 474, 476.) His answers under oath to the questions put to him hy the court under section 485-a of the Code of Criminal Procedure as furnished to us by him and recited in the clerk’s minutes disclose that prior to November, 1925, he had been convicted of petit larceny in the same County Court and had served a sentence of ninety days therefor. That imported a finding hy the court at that earlier time that he was then over sixteen years of age. ■ (See Penal Law, § 817.) Knowledge of that earlier finding of the same court was thus brought home to the trial court in the instant case. It is not permitted for another court without appellate jurisdiction to set aside a judgment of conviction rendered under the circumstances disclosed here hy means of a writ of habeas corpus more than twenty years after the rendition of the judgment, for that would lead to the “ chaotic situation ” envisioned by Chief Judge LehmaN in his opinion in Matter of Morhous v. New Yorh Supreme Court (supra, p. 140). See People ex rel. Stevens v. Morhous (269 App. Div. 461, 462, supra). Appropriate process for the correction of error was provided hut not availed of hy relator or his counsel who represented him at the trial. If their failure were to insure to relator a remedy now, then habeas corpus would always be available when a question as to the jurisdiction of the trial court was raised. We decided to the contrary in People ex rel. Wachowicz v. Martin (293 N. Y. 361, supra).

People ex rel. Jones v. Brophy (287 N. Y. 687, certiorari denied 316 U. S. 669) is not to the contrary since, it being clear that the finding that relator was more than sixteen years old at the time of the prior conviction was fully sustained by the evidence, we considered no other question.

The order appealed from should be affirmed.

Ftjld, J.

(concurring). I agree that this is not a case for habeas corpus, but, since I reach that conclusion by a road different from that taken by Judge CoNway, I would indicate my course.

BotH by history (Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; People ex rel. Carr v. Martin, 286 N. Y. 27; Davis v. Packard, 8 Pet. [U. S.] 312, 324, affg. 10 Wend. 50), and by the controlling New York statute (Civ. Prac. Act, § 1231), “ A person is not entitled to ” a writ of habeas corpus when ‘£ detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction ”. In the present case, relator is being detained by virtue of a 1942 judgment of the County Court of Kings County, sentencing him to 'imprisonment for life as a fourth felony offender. Whether or no the court wherein he was initially tried and convicted in 1925 possessed jurisdiction to adjudge him guilty of a crime need not concern us, for' no one can deny that the 1942 judgment was within the power and competence of the tribunal which rendered it.

It is true, as urged, that this court has sanctioned the use of the writ where a sentence has been imposed “ for a term longer than authorized by statute ”. (See People ex rel. Carollo v. Brophy, 294 N. Y. 540, 542; see, also, People ex rel. Newman v. Foster, 297 N. Y. 27; People ex rel. Kerrigan v. Martin, 291 N. Y. 513; People ex rel. Romano v. Brophy, 280 N. Y. 181; People ex rel. Marcley v. Lawes, 254 N. Y. 249; People ex rel. Tweed v. Liscomb, 60 N. Y. 559.) In all such instances, however, the validity or invalidity of the sentence under attack was susceptible of determination as a matter of law by simple perusal of the record before the court imposing the challenged sentence. (See, e.g., People ex rel. Newman v. Foster, supra; People ex rel. Carollo v. Brophy, supra; People ex rel. Sloane v. Lawes, 255 N. Y. 112, 119; People ex rel. Marcley v. Lawes, supra.) The “ writ [of habeas corpus] in New York merely tests the legality of a detention according to the face of the record.” |(New York ex rel. Whitman v. Wilson, 318 U. S. 688, 692.) Quite clearly, the present is not such a case. Here, no study of the record before the sentencing court could possibly have revealed that relator was under sixteen years of age in 1925. Harrison is not attempting to correct a sentence imposed for a term longer than authorized because of a mistake of law; lie is not attempting to test the legality of Ms detention according to the face of the record. What he is seeMng to do is to vacate the prior 1925 conviction because of a mistake of fact not apparent upon the record. That may not be done by habeas corpus, and it is for that reason that I concur for affirmance.

I am impelled, however, to write further because of the fears expressed in the dissenting opinion (p. 235) that “ affirmance here, read with the Hogan case (296 N. Y. 1, supra) will mean that if a youth under sixteen years is, through mistake or ignorance, or, indeed, through malice or fraud, unlawfully convicted, nothing can be done about it.”

I do not so understand either our present determination or the decision in that Hogan case. (Matter of Hogan v. Court of General Sessions, 296 N. Y. 1.)

In my view, denial of habeas corpus does not necessarily mean the denial of all remedy in a proper case. As this court not long ago observed, and in a very similar setting, “ A remedy there must be. The approach to it must be by the only visible route — by motions addressed to the sentencing court. ’ ’ (Matter of Hogan v. New York Supreme Court, 295 Y. 92, 97.) In tMs case, the “ visible route ” takes its direction from the very difficulties which inhere in habeas corpus as a corrective procedure. To permit the judgment of a court — in this case, the 1942 judgment of the County Court of Kings County — having jurisdiction over person and subject matter and having power to mete out the sentence imposed, to be “ challenged by writ of habeas corpus in another court ⅜ ⅜ * would produce a chaotic situation!” (Italics supplied.) (Matter of Morhous v. New York Supreme Court, 293 N. Y. 131, 140, supra.) A prisoner’s challenge to a prior conviction can best be weighed by the court which convicted him. That is the court which is most likely to have full knowledge of the circumstances attending the conviction, which can best appreciate the meaning of the record before it, and which can most intelligently evaluate the significance of the new information produced by the prisoner.

In short, it is my opinion that, if ever a second or fourth felony offender wishes to assert the invalidity of a prior conviction — ascribed to an error of fact not apparent on the face of the record — he must do so by motion in the nature of a writ of error coram nobis in the court where he was tried. Only if he is successful in that attack, may he thereafter move to have his subsequent sentence corrected. (See People ex rel. Sloane v. Lawes, 255 N. Y. 112, supra; compare Matter of Hogan v. Court of General Sessions, 296 N. Y. 1, with People v. Shapiro, 188 Misc. compare People ex rel. Bernoff v. Jackson, 269 App. Div. 580, with People v. Bernoff, 61 N. Y. S. 2d 46.)

No exhaustive discussion is necessary to establish the propriety of coram nobis, at least in certain instances, to vacate a judgment convicting a juvenile offender of a felony. Prom time immemorial that remedy was employed to call up facts unknown to the court at the time of judgment — facts which affected the validity and regularity of the judgment itself, facts which, if known, would have precluded the judgment rendered. There can, of course, be no doubt that a court would not have adjudged a defendant guilty of a felony, or, for that matter, of any non-capital crime, had it known that he was- under sixteen years of age when he committed the act for which he was being tried; in a very real sense, that was a fact which, if known, would have precluded the judgment rendered. (Penal Law, § 2186; see, e.g., People v. Murch, 263 N. Y. 285, 290.) And such an application of coram nobis would be perfectly consistent with the function of its ancient counterpart, for one of the earliest uses of the writ was to bring the fact of infancy, if previously undisclosed, to- the attention of the court which had rendered the judgment. (See Meggot v. Broughton [1588] Cro. Eliz. 106, 78 Eng. Rep. 364; Dawkes v. Payton [1650] Sty. 216, 218, 82 Eng. Rep. 657, 659; 1 Rolle’s Abridgement [1668] p. 747; Higbie v. Comstock, 1 Denio 652 [1845] ; Matter of Toney, 11 Mo. 661, 663 [1848]; see, also, 2 Tidd on Practice of the Courts of King’s Bench [9th ed. 1828] p. 1136; 2- Cooley’s Blackstone [3d ed. 1884] p. 406, n. 4.)

It may well be that if a defendant knew, when tried, that he was under sixteen but either concealed that fact or lied about it — or if the issue of age was adjudicated upon the trial (see Matter of Hogan v. Court of General Sessions, supra, 296 N. Y. at p. 8) — coram nobis may not be used to attack the judgment of conviction. But if, on the other hand, a defendant was unaware that he was under age — and his asserted nonage was not put in issne — reason and fairness demand that he he privileged to apprise the court of that fact so that it might take appropriate corrective action. And, as I have indicated, it is my belief that the Hogan case does not preclude resort to coram nobis by one who asserts that he was a juvenile when he committed the alleged felony of which he was initially convicted, provided that he can also allege and prove that, for some justifiable reason, he was unable at the trial to make known his true age. (Cf., e.g., Sanders v. State, 85 Ind. 318, 326; Commonwealth v. Harris, 351 Pa. 325, 329.) No such allegation or proof was present in the Hogan case; in point of fact, it there affirmatively appeared (1) that the defendant had testified upon the trial — which he later claimed was held when he was under sixteen — that he was then eighteen years old and (2) that his mother — who obviously must have known his age —• had .been present in court when judgment was pronounced.

The order appealed from should be affirmed.

DesmoNd, J.

(dissenting). Belator-appellant, having been four times found guilty of felonies in this State (in 1925, 1928, 1932 and 1942), was, as a consequence of the last of those convictions, sentenced, as a fourth offender, to serve a prison term of from twenty years to life. In 1946, he brought this habeas corpus proceeding, alleging that on the date (September 22, 1925) of the commission of the offense of which he was first convicted, he was in fact not yet sixteen years of age. It is his contention here, and an Arizona birth certificate attached to his petition and presented to Special Term in this proceeding purports to show, and Special Term has herein made a finding, that he was born on October 23, 1909. On the return of the writ there was a hearing and testimony was taken, at the close of which the Special Term Justice held, as fact, that relator’s 1925 offense had been committed when relator was only fifteen years old. Accordingly, the writ was sustained. After certain other procedural steps to which it is not necessary to refer, Special Term made an order sending relator back to the court which had sentenced him as a fourth offender in 1942, to be resentenced as a third offender.

The People appealed, from the order sustaining the writ and ordering resentenee, to the Appellate Division, Third Department, which reversed the order on the law and dismissed the writ. The memorandum opinion of the Appellate Division pointed out that at the time of the first criminal judgment against him, relator had given his age as twenty-one, and held that since (according to the Appellate Division) the question of fact (as to his age) “ was within the jurisdiction of and adjudicated in the court of original jurisdiction ”, it could not he reviewed or litigated in a.habeas corpus proceeding. (272 App. Div. 970.) It is to be kept in mind that the Appellate Division’s reversal was on the law, with no interference with the facts found below, so we in this court must start out with an unreversed finding in relator’s favor, on the question of the date of his birth, which finding is binding upon us' at this point. Therefore we approach the ease on the basis that it has now been established that relator was fifteen years old only, when he committed the first, or 1925, offense. •

So far as we can discover, no issue as to relator’s date of birth had been raised, litigated or decided at his 1925 trial in the County Court of Kings County. So far as appears, there was no mention of his age in those County Court proceedings until November 23, 1925, four weeks after the jury had found him guilty. On that date, when relator came up for sentence he was, apparently, asked his age (by whom it does not appear) and one of the indorsements then made on the back of the indictment says this: “ Age: 21.” Presumably, that, with other information set down when relator’s “ pedigree ” was taken, was elicited from relator, but, even so, the process was not — indeed, had no resemblance to — the trial of an issue of fact. It was a mere gathering of data, for the court’s information in sentencing and for statistical purposes (Code Crina. Pro., § 485-a; see People ex rel. Shepherd v. Martin, 267 App. Div. 1041), although it did give the prisoner an opportunity to claim he was under age (if indeed he then knew how old he was). Incidentally, section 485-a does not direct that the defendant be questioned as to his age and, it should be remarked, also, the clerk’s minutes of the 1925 criminal case do not show that relator was represented by counsel thereat. All in all, it seems plain enough that there was no litigation or decision, on the 1925 trial, of relator’s age, and certainly it cannot now be said that the jurisdictional fact as to his age was conclusively determined against Accordingly, the way is open for this collateral attack on the 1925 judgment, on the ground that the County Court had no jurisdiction of the offense, in that there was absence of a requisite jurisdictional fact. That age was a jurisdictional fact is indisputable. Under the laws of this State, as they now are and as they were in 1925 (see L. 1924, ch. 254, §§ 2, 7; Penal Law, § 2186), “ the only crimes which a child under sixteen years of age is capable of committing are treason, murder in the first degree and murder in the second degree; and ⅜ ⅜ ⅝ to those crimes alone, in the case of such a child, have the criminal courts jurisdiction ” (People v. Murch, 263 N. Y. 285, 290; see People v. Roper, 259 N. Y. 170, 174). The Murch opinion in this court says that as to crimes other than those just listed, a verdict of guilty rendered against a person under sixteen years of age “ nullity under the existing statutes ’ ’ (supra, p. 291). Of course, if the County Court had in 1925 tried out, as a disputed issue of fact, this very question as to appellant’s being over or under sixteen, the resultant finding of fact would have had to stand unless and until reversed on direct review, that is, on appeal from the judgment of conviction; hut, since there was no such trial or determination in. 1925, the fact issue remained open, and the presumption of the County Court’s jurisdiction was a rebuttable presumption of fact which could be rebutted in a later proceeding and has now been successfully so rebutted in this present proceeding (see People ex rel. Frey v. Warden, 100 N. Y. 20, 26; and see Judge Vann’s enlightening opinion in People ex rel. Scharff v. Frost, 198 N. Y. 110, 116, quoted with approval in People ex rel. Hubert v. Kaiser, 206 N. Y. 46, 53). In such a situation, it is traditional practice in this State to permit a later collateral inquiry, by way of habeas corpus, on proof outside the original record, as to the presence or absence of a requisite jurisdictional fact (1 Bailey on Habeas Corpus, pp. 87-91; People v. McLeod, 25 Wend. 483, 571-572; People v. Cassels, 5 Hill 164, 168; Matter of Divine, 21 How Prac. 80, 82; People ex rel. Sinkler v. Terry, 108 N. Y. 1, 12; People ex rel. Danzinger v. Protestant Episcopal House of Mercy, 128 N. Y. 180, 189; People ex rel. Perkins v. Moss, 187 N. Y. 410, 418; People ex rel. Albanese v. Hunt, 266 App. Div. 105, affd. 292 N. Y. 528; People ex rel. Carr v. Martin, 286 N. Y. 27, 32; People ex rel. Ray v. Martin, 294 N. Y. 61, 65). The decisions of this court, over the years, as to the general scope and coyerage of habeas corpus, are numerous and at some points difficult to construe and apply. But as to the availability of that particular remedy to reach a question, such as we have here, of nonexistence of a jurisdictional fact not litigated or decided in a prior criminal prosecution, there is no doubt at all, as witness all the decisions above cited, right down to People ex rel. Ray v. Martin (supra) decided in 1945. Indeed, People ex rel. Jones v. Brophy (287 N. Y. 687, certiorari denied 316 U. S. 669) is a recent case in this court, where, although decision went against relator on the merits, he was allowed to use a habeas corpus writ to put before the court the identical question here presented. The Federal cases state the same rule (see discussion in United States ex rel. Emanuel v. Jeager, 117 F. 2d 483,487; United States ex rel. Sutton v. Mulcahy, 169 F. 2d 94, [C. C. A. 2d]). In all the cases cited in this paragraph the relator’s habeas corpus writ was,issued, although he could have raised the same point on his trial, so that is of no consequence. Belator here had, accordingly, a clear right, on the return of his writ in this proceeding, to present such proof as he had, that he was born later than September 22, 1909. That proof, adequate for the purpose, was presented at Special Term, and accepted by that court. It follows that the Appellate Division’s reversal on the law, of the Special Term order, was erroneous.

It is argued that this case is not one for habeas corpus since appellant’s latest sentence as a fourth offender, in 1942, on which sentence he is now being held, was rendered by a court which had at that time jurisdiction of his person and of the charge against him (People ex rel. Carr v. Martin, 286 N. Y. 27, supra; People ex rel. Wachowicz v. Martin, 293 N. Y. 361). This could almost be called begging the question, since the County Court of Kings County, which adjudged appellant a fourth offender in 1942, was the same court which had illegally and without jurisdiction dealt with appellant in 1925, for a crime committed while he was under age, and its only basis for holding him to be a fourth offender in 1942 was its own prior void judgment of 1925. But, even if we concede that the sentencing court in 1942 was possessed of jurisdiction of relator’s person and of the subject matter, there would still be in this situation another sure ground for habeas corpus. It is not, and never has been, strictly true that only purely jurisdictional questions can be reached by habeas corpus. The writ is used also where, though all jurisdictional facts were in order, the sentencing court has attempted to exercise a power it did not possess (see People ex rel. Frey v. Warden, supra, 100 N. Y. at p. 24; People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 568; People ex rel. Kemmler v. Durston, 119 N. Y. 569, 574) by handing down an excessive or otherwise illegal sentence (People ex rel. Devoe v. Kelly, 97 N. Y. 212; People ex rel. Marcley v. Lawes, 254 N. Y. 249). There are numerous decisions in this court which say that when a defendant has been incorrectly adjudged to be a subsequent offender — in that one of his earlier convictions should not have been counted — habeas corpus is his right (People ex rel. La Placa v. Murphy, 277 N. Y. 581; People ex rel. Carollo v. Brophy, 294 N. Y. 540; People ex rel. Newman v. Foster, 297 N. Y. 27; People ex rel. Milton v. Jackson, 297 N. Y. 708). Any distinctions between those cases just cited and this one are differences of detail only, and nondeterminative. The real question here, as in the cited cases, is as to the correctness of a sentence as a fourth offender. It has become traditional in this State to assign habeas corpus as the procedure for reaching such questions.

The suggestion is made that appellant should have moved in the County Court of Kings County for relief, by making a so-called “ coram nobis ” type application to set aside the illegal 1925 conviction. There are two answers to that suggestion. First, even though such a motion was a permissible procedure, it does not follow that the great writ of habeas corpus was not relator’s to employ instead, if he so desired. Another sufficient answer is that there is more than a little doubt, under Matter of Hogan v. Court of General Sessions (296 N. Y. 1) as to whether “ coram nobis ” would lie, on this state of facts. We should not put ourselves in the position of driving this man from pillar to post. If it be true — as we must assume at this he was indicted, tried and sentenced in 1925, when the plain statutory law of the State forbade — then we must give him his new day in court. Following Matter of Hogan v. Court of General Sessions (supramight have to hold that coram nobis cannot be used. I read Matter of Morhous v. New York Supreme Court (293 N. Y. 131, 140) cited Appellate Division here, as saying that when a fundamental right has been withdrawn of abridged, and when there is no other remedy at hand, habeas corpus will lie, despite technical objections thereto (see Bowen v. Johnston, 306 U. S. 19, 27). “ Denial of the writ in such case might not accord with its historic purpose and be contrary to the spirit if not the letter of the Constitution of this State as well as of the United States ” (Morhous opinion, 293 N. Y. at p. 140).

The discussion of facts in the opinion for affirmance seems to suggest that relator’s proof is too meager or suspicious to justify relief. But he did make out a prima facie case (see Penal Law, § 817, as to birth certificate), and the only material fact was duly found in his favor, and so the fact inquiry is closed, as far as we are presently concerned.

The jurisdiction, or lack of it, of the 1925 court depended on the actual and no false or mistaken statements by the defendant could confer jurisdiction. This is a question of subject-matter jurisdiction, which cannot accrue to a court by consent, waiver or mistake, but must be conferred by Constitution or statute. It follows that any holding herein that habeas corpus is not allowable to this relator must necessarily mean that the writ cannot, as matter of law, issue in the case of any underage defendant, who, despite the express prohibitions of our statutes, has been indicted, tried and convicted for felony, but who, through youth and ignorance, has failed to take an appeal from that totally void judgment of conviction. Since such a judgment is void for lack of' jurisdiction, no appeal therefrom was necessary to keep this relator’s rights alive. And illusory, indeed, is the remedy of an appeal for a defendant who is so ignorant of his true age, or of the protection the law affords him at that age, that he fails to plead his nonage, at the trial. The strong and positive public policy of this State is that those under sixteen years of age cannot be convicted of crimes, and that the courts (other than children’s courts) are wholly without. jurisdiction to try or sentence such, persons. An equally strong and positive, but much older, public policy of this State says that the writ of habeas corpus, the great writ of liberty, is ready at hand to redress such wrongs. Yet an affirmance here, read with the Hogan case (296 N. Y. 1, supra) will mean that if a youth under sixteen years is, through mistake or ignorance, or, indeed, through malice or fraud, unlawfully convicted, nothing can be done about it.

The order of the Appellate Division should be reversed, with costs and the proceeding remitted to the Appellate Division for determination by it upon the question of fact (Civ. Prac. Act, § 606).

Thacher and Dye, JJ., concur with CoNWAY, J.; Fuld, J., concurs in separate opinion; Desmohd, J., dissents in opinion in which LoughraN, Ch. J., and Lewis, J., concur.

Order affirmed.


source: Caselaw Access Project

author: -LoughhaN, Ch. J.

license: Public Domain

text:
    In the Matter of Caryl E. Cohen, Appellant, against Harold Fields et al., Constituting the Board of Examiners of the Board of Education of the City of New York, Respondents.
    Argued June 8, 1948;
    decided October 14, 1948.

      Copal Mints for appellant.
    I. Respondents’ concept of “ record ”, as applied in this case, is basically illegal. (Matter of Bloat v. Board of Education, 274 N. Y. 367; Matter of Bridgman v. Kern, 257 App. Div. 420, 282 N. Y. 375; Hurley v. Board of Education, 270 N. Y. 275; Ciaccia v. Board of Education, 271 N. Y. 336; Matter of FinTc v. Finegan, 270 N. Y. 356; People ex rel. Steele v. McGuire, 139 App. Div. 680; Matter of Cowen v. Beavy, 283 N. Y. 232.) II. It was illegal for respondents to inquire of the principals whether they recommended the petitioner, with what degree of fervor they did so, and whether they would be “ happy ” to have him appointed as a first assistant in their respective schools. III. Respondents’1 determination is illegal because it expresses an ultimate conclusion unsupported by findings of fact. (Matter of Wood v. Board of Education, 267 App. Div. 959; Matter of Perpente v. Moss, 293 N. Y. 325; Matter of Scudder v. O’Connell, 272 App. Div. 251.) IY. It was illegal for respondents to adjudge petitioner’s “ record ” “ insufficiently meritorious ” on the ground that teaching was of “ secondary interest ” to petitioner and that there was a “ conflict of his out of school activities with his school activities.” Y. It was illegal for respondents to adjudge petitioner’s “record” “insufficiently meritorious” on the ground: (a) That petitioner was wanting in “ the high standard of maturity required in a position of this type ”; or (b) that petitioner was of “ uncooperative attitude * * * extremely selfish point of view ”, etc., or (c) of adverse reaction to the petitioner’s words or demeanor at the “ hearing ” on May 22, 1946. (Matter of Fink v. Finegan, 270 N. Y. 356; Matter of Bridgman v. Kern, 257 App. Div. 420, 282 N. Y. 375.) VI. If respondents’ determination rests on a cumulation of grounds or considerations, it is illegal and falls if any one or more of the grounds or considerations is legally or factually unsupportable. (People ex rel. Gilson y. Gibbons, 231 N. Y. 171; Polin v. Kaplan, 257 N. Y. 277; Gompers v. Bucks Stove & Range Go., 221 U. S. 418; Weibert v. Hanan, 202 N. Y. 328; Wurtsman v. Kalinowski, 233 App. Div. 187; Jefferson v. New York Elevated R. R. Go., 132 N. Y. 483; Starbird v. Barrons, 43 N. Y. 200; People v. Alex, 265 N. Y. 192.)

      John P. McGrath, Corporation Counsel (Michael A. Gastaldi, Seymour B. Quel and Morris Weissberg of counsel), for respondents.
    I. Tbe action of the board of examiners in denying a license to petitioner because of insufficiently meritorious record was not arbitrary, capricious or taken in bad faith.. Under such circumstances the. court may not substitute its judgment for that of the board. (Matter of Valenti v. Board of Education, N. Y. L. J., Jan. 26, 1943, p. 349, 266 App. Div. 757; Matter of Steger v. Board of Education, 171 Mise. 195, 260 App. Div. 1003 ; Matter of Larkin Go. v. Schwab, 242 N. Y. Matter of Garow v. Board of Education, 272 N. Y. 341; People ex rel. McClelland v. Roberts, 148 N. Y. 360; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435; Matter of Becker v. Eisner, 277 N. Y. 143; Matter of Beck v. Finegan, 164 Mise. 334, 254 App. Div. 110; Matter of Thomas v. Kern, 280 N. Y. 236; Matter of Davis v. Wiener, 260 App. Div. 127, 285 N. Y. 537; People ex rel. Leary v. Knox, 166 N. Y. 444; Matter of Sloat v. Board of Education, 274 N. Y. 367.) II. Judicial review of ratings in civil service examinations is limited to a determination whether the ratings complained of violated some statute or were essentially arbitrary. (People ex rel. Buckley v. Roosevelt, 19 App. Div. 431; Matter of Allaire v. Knox, 62 App. Div. 29, 168 N. Y. 642; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; People ex rel. Caridi v. Creelman, 150 App. Div. 746; Matter of Allen v. Finegan, 254 App. Div. 858, 278 N. Y. 737.)
   -LoughhaN, Ch. J.

Examination of applicants who are required to be licensed or to have their names placed on eligible lists for appointment in the schools of the city of New York is a statutory duty that is imposed upon a board of examiners who are appointed by the municipal board of education. (Education Law, § 2504, subd. 2; § 2519, subd. 2.) At the times here in issue, a by-law adopted by the board of examiners read in part as follows:

The BatiNG or Beoord. Section 14. 1. Prior to recommending the issuance of license in any examination, the Board of Examiners shall inspect the records of the applicants and shall appraise said records as ‘ satisfactory ‘ insufficiently meritorious or ‘ unsatisfactory for the license in question. The term ‘ unsatisfactory ’ shall be used when the official service record is unsatisfactory or when the candidate is adjudged unfit with respect to character. The aforesaid inspection and appraisal shall he regarded as a non-competitive part of any examination and shall he duly designated as such in the announcement circular of the examination.
“ 2. Such inspection may extend to the records of applicants as students, to their records as teachers or supervisors, and to their records of employment in any other profession, or in a mercantile or commercial occupation, or in a trade. * * *
“ 3. For the appraisal of record the Board of Examiners shall avail itself of official records on file with the Board of Education, such as official annual and semi-annual ratings, recommendations granting or denying permanent appointment, ratings on substitute licenses and certificates, correspondence, etc. The Board of Examiners shall also inquire into the records of applicants by requesting appropriate college and professional school officials, supervisors, employers, and others, to furnish reports concerning applicants # ⅞ #.
7. The Board of Examiners shall refuse to recommend the issuance of license to applicants whose records are appraised as ‘ insufficiently meritorious or ‘ unsatisfactory ’.
8. Following the non-competitive appraisal of record described in Subdivision 1, the records of applicants in competitive examinations for regular licenses (and such other licenses as the Board of Examiners may designate) whose records are not declared ‘ unsatisfactory or ‘ insufficiently meritorious ’ for the license in question shall be competitively evaluated according to a rating scheme approved by the Board of Examiners for each grade of license.”

Questions as to the validity of this by-law are here presented.

‘ ‘ Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive This is a command of tbe Constitution of tbe State (art. V, § 6). In Matter of Fink v. Finegan (270 N. Y. 356, 362), we said: “ An examination cannot be classed as competitive nnless it conforms to measures or standards wbicb are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience ” (see Matter of Sloat v. Board of Examiners, 274 N. Y. 367; Matter of Cowen v. Reavy, 283 N. Y. 232). In the light of the constitutional principle so declared, we turn to the matters upon which our decision is sought.

Out of ninety-seven applicants, the petitioner was one of eight who passed all the written, teaching, supervisory, interview and physical and medical tests given in an examination for the competitive position of first assistant in social studies in the day high schools of the city of New York. Nevertheless, the board of examiners by a vote of six to one rejected the petitioner on the strength of the by-law^ in question, saying that in their opinion his record was insufficiently meritoThe record of the petitioner so referred to consisted of official reports on file with the board of education, such as annual and semiannual ratings of his antecedent activity made by his superiors in the city school system and of answers made by them and by others to inquiries that had been circulated by the board of examiners. It was thereby indicated that a high school principal formerly had criticized the petitioner as a teacher, though the petitioner’s work was characterized as “ satisfactory ” in each of a series of reports made by this principal semiannually to the superintendent of schools of the city. In a report subsequently submitted by the same principal on a form supplied by the board of examiners, the following appears: “Would you be happy to have the applicant [this petitioner] appointed as a first assistant to your school? Why? No. that he is primarily a scholar interested in research. Teaching seems a secondary interest. * * * I hesitate to recommend the applicant for this license.”

A copy of that subsequent report was furnished to the petitioner and at his request he was then afforded a hearing before the board of examiners, after which the board passed upon his record through a referendum vote Of the six members who voted against him, three relied entirely upon the above-quoted final report of the high school principal under whom the petitioner had served several years before and a fourth member also took that report into account though in addition that member said the petitioner “ was lacking in frankness during the hearing ” and “ on several occasions he made statements which were equivocal.” A fifth member said: “ The chairmanship of a department, particularly of a social science department, requires a higher degree of maturity, of identification with school, of understanding of the problems of the school, of cooperation with the school administrations (even though one may disagree with its policies), than is evidenced in the record of the applicant. ’ ’ The vote of a sixth member was cast against the petitioner “ because of his uncooperative attitude, his extremely selfish point of view, and his tendency to twist the truth just a bit when questioned about extra-curricular activities ”. The one member who was on the side of the petitioner said: This man has an unusually wide background for the broad field of social studies. He made the mistake of endeavoring to put his own interests first on several occasions but not to the exclusion of demands made upon his time." For a position of this sort, the schools are the richer in having a person who has had the practical experience in the political science field that this candidate has had. Under the circumstances, I rate his record satisfactory.” The decision of the board of examiners was recorded in this form: “ Maj. insufficiently meritorious.”

This decision of the board was reviewed and confirmed by the courts below in the present proceeding which the petitioner brought under article 78 of the Civil Practice Act. He appealed to this court by our leave. The members of the board of examiners were respondents below and are the respondents here.

As we have seen, they rejected the petitioner by rating his record as insufficiently meritorious ” — an undefined phrase which the by-law permitted them to apply noncompetitively. Thus the by-law furnishes in its own text reason for its condemnation, seeing that it leaves an examiner at liberty to appraise the records of applicants in accordance with standards peculiar to an examiner himself, contrary to the Constitution.

There is no dispute in respect of the character of the petitioner, since under the by-law any significant moral defect would have necessitated the rating of his record as unsatisfactory ’ ’ and that was not done. Nor is there any question in respect of the petitioner’s personal appearance or address or vocal expression or command of speech or teaching ability or competency in classroom management. Indeed he was subjected in the first place to a supervision test, an interview test, a teaching test and to physical and medical examinations, all of which ended favorably to him. In short the case is simply this: The petitioner was rejected because a minority of the board of examiners thought he was selfish and wanting in candor and in professional development, and because a majority felt themselves bound by the opinion of a high school principal who did not refuse to recommend the petitioner, but only said that he hesitated to do so. Of course, individual notions of that sort cannot be allowed to dictate the choice of civil servants in the competitive class, if the Constitution is to be obeyed.

We are constrained, therefore, to declare the by-law to be invalid and to nullify the determination here made pursuant thereto. Nothing else now stands between the petitioner and the license that was refused him. Hence the orders should be reversed, with costs in all courts, the determination of the respondents annulled and the matter remitted to Special Term with directions to grant the relief prayed for in the petition.

Lewis, DesmoND, Thacher, Dye and Ftjld, JJ., concur; CoNway, J., taking no part.

Orders reversed, etc. [See 298 N. Y. 754.]


author: Lewis, J. Puld, J.

text:
    The People of the State of New York, v. Julius Lobel and Irving Cohen, Appellants.
    Argued June 2, 1948;
    decided October 21, 1948.

      1. Maurice Wormser and Martin Benjamin for Julius Lobel, appellant.
    I. The trial court erred in allowing proof of asserted false pretenses and representations which were not in any way alleged or set forth in the indictment. (Penal Law, § 1290; L. 1942, ch. 732, § 2; as amd. by L. 1943, ch. 224.) II. The trial court’s charge was erroneous and highly prejudicial. (C. J., Summary of Evidence, § 1170, p. 713; Minner v. United States, 57 P. 2d 506; People v. Wolf, 183 N. Y. 464; People v. Thomas, 240 App. Div. 101; Williams v. United States, 93 F. 2d 685; Quercia v. United States, 289 U. S. 466.) III. Defendant Lobel was denied due process of law in violation of his constitutional rights under the Fourteenth Amendment of the Constitution of the United States. (United States v. Marchant, 12 Wheat. [U. S.] 480; v. Missouri, 120 U. S. 68; Pointer v. United States, 151 U. S. 396.)

      William W. Kleinman and David F. Price for Irving Cohen, appellant.
    I. The guilt of appellant Cohen was not established beyond a reasonable doubt. (People v. Tavormina, 257 Y. 84; United States v. Babinowich, 238 U. S. 78; Sealfon v. United States, 332 U. S. 575; People v. Gerst, 137 App. Div. 272; People v. Gannon, 236 App. Div. 155; People v. Josephs, 143 App. Div. 534; People v. Weiss, 290 N. Y. 160; People v. Taddio, 292 N. Y. 488; People v. Winter, 288 N. Y. 418; People v. Lahn, 258 App. Div. 225; People v. Connelly, 189 App. Div. 82; People v. Galbo, 218 N. Y. 283.) II. The trial court committed reversible error in permitting proof by the prosecution of false pretenses, none of which were alleged in the indictment. (People v. Willett, 102 N. Y. 251; People v. Dumar, 106 N. Y. 502; People v. Noblett, 244 N. Y. 355; People v. Ehrlich, 190 App. Div. 302; People v. Cohen, 148 App. Div. 205; People v. Sloane, 254 App. Div. 780;
      People v. Page, 182 Mise. 253; People v. Salter, 191 Ápp. Div. 723; People v. Ryan, 274 N. T. 149.) III. The trial court erred in its charge. (People v. Maione, 284 N. Y. 423; People v. Pig-nataro, 263 N. Y. 229; People v. Lazar, 271 N. Y. 27; People v. Wolf, 183 N. Y. 464; People v. Feldman, 296 N. Y. 127; People v. Montesanto, 236 N. Y. 396.) IV. The trial court erred in denying Cohen’s motion to dismiss the indictment upon the ground that the evidence before the grand jury was insufficient to warrant the finding of said indictment. (People v. Lahn, 258 App. Div. 225; Code Crim. Pro., § 258; People v. Glen, 173 N. Y. 395; People v. Nitsberg, 289 N. Y. 523.) V. Irrelevant and incompetent testimony was admitted which, with the prejudicial summation of the district attorney, deprived Cohen of a fair and impartial trial. (People v. Kress, 284 N. Y. 452; People v. Mullens, 292 N. Y. 408; People v. Haas, 105 App. Div. 119; People v. Hovell, 109 Mise. 510; People v. Ledwon, 153 N. Y. 10; People v. Suffern, 267 N. Y. 115; People v. Lewis, 275 N. Y. 33.) VI. Appellant Cohen has been deprived of his liberty without due process of law. The trial court permitted jurors to be sworn who were challenged peremptorily by Cohen but who were not peremptorily challenged by defendant Lobel, and these jurors participated in the verdict. (People v. Doran, 246 N. Y. 409; People v. McQuade, 110 N. Y. 284; People v. Grieco, 266 N. Y. 48; Betts v. United States, 132 P. 228; United States v. Mar chant, 12 Wheat. [U. S.] 480; Pointer v. United States, 151 U. S. 396.)

      Miles F. McDonald, District Attorney (Solomon A. Klein of counsel), for respondent.
    I. Guilt was established beyond a reasonable doubt. (People v. Crum, 272 N. Y. 348; People v. Gashin, 259 N. Y. 434; People v. Sugarman, 248 N. Y. 255; People v. Peshy, 254 N. Y. 373; People v. McCarthy, 250 N. Y. 358; People v. Katz, 209 N. Y. 311; People ex rel. Woronoff v. Mallon, 222 N. Y. 456; WoloszynowsM v. New York Central R. R. Co., 254 N. Y. 206; People v. Gerks, 243 N. Y. 166; People v. Hines, 284 N. Y. 93; People v. O’Neil, 48 Hun 36,109 N. Y. 251; People v. Crossman, 241 N. Y. 138.) II. Testimony as to the forged invoices was properly received in evidence. (People v. Ashworth, 220 App. Div. 498; People v. Bennett, 37 N. Y. 117; Phelps v. People, 72 N. Y. 334; People v. Brenneauer, 101 Mise. 156;
      Regina v. Coolce, 12 Cox Crim. Cases 10; People .v. Noblett, 244 N. Y. 355; People v. Hennessey, 15 Wend. 147; People v. Meadows, 199 N. Y. 1; People v. Rothstein, ISO N. Y. 148; People v. Divinar, 106 N. Y. 502; People v. Sattlelcau, 120 App. Div. 42.)
   Lewis, J.

Tlie indictment upon which rests the judgment of conviction against each of the two defendants-appellants, originally contained 479 counts which charged the appellants and three other defendants with grand larceny first degree and forgery second degree. The indictment also charged that the acts and transactions alleged in the several counts were connected together and constitute part of a common plan and scheme.” Prior to the trial certain counts charging forgeries and larcenies were dismissed on motion hy reason of lack of jurisdiction and insufficiency of evidence before the grand jury; other counts were severed on motion by the district attorney. During the trial all counts charging forgery were dismissed upon the ground that the alleged forgeries were not committed within the jurisdiction of the County Court of Kings County. Of the remaining charges the trial judge submitted to the jury seventy-six counts which charged the defendant Lobel with grand larceny first degree, involving his participation during the year beginning October 18, 1945, in the taking from Mergenthaler Linotype Company — hereinafter referred to as Mergenthaler — of seventy-six checks in amounts totaling more than $400,000. The jury found Lobel guilty as charged in each of the seventy-six counts submitted for its consideration. As against the defendant Cohen the jury was permitted to consider fifty-six counts charging grand larceny first degree upon which he was found guilty under forty-one counts involving his participation in taking from Mergen-thaler forty-one checks in amounts totaling in excess of $152,000.

At the Appellate Division the judgment convicting the defendant Lobel was affirmed unanimously; the judgment convicting the defendant Cohen was affirmed, two justices dissenting and voting to reverse on the law and to dismiss the indictment upon the ground that the specific crimes submitted to the jury were not proved beyond a reasonable doubt. (273 App. Div. 978.) The appeal hy the defendant Lobel is hy permission of a member of this court; the appeal hy the defendant Cohen is hy permission of a justice of the Appellate Division.

One of four individuals named in the indictment was W. Arthur Nickel who, before the jury was selected, pleaded guilty to 202 counts of the indictment and thereafter testified for the prosecution. Nickel was employed by Mergenthaler as the head of the accounts-payable division of its executive accounting department. Among the functions of that division was the preparation in triplicate of checks to cover approved invoices bea'ring notations made in the various departments which had received the supplies to which the attached invoices referred. The daily grist of those checks — which numbered more than 2,000 a month — with attached invoices covering- the items purchased, were presented by Nickel or by one of his subordinates to authorized officers for signature. After they were signed they were sent back to the accounts-payable division where it became the duty of Nickel and his subordinates to mail the original checks to the vendor-creditors and to retain two copies for office records to aid in reconciling the Mergen-thaler bank balances. There came a time in September, 1945, when Nickel was induced by persons outside the Mergenthaler office staff to participate in a scheme by which he prepared and submitted to authorized Mergenthaler officers for signature checks drawn to fictitious payee-creditors whose names were chosen by him to simulate the names of creditor companies then doing business with Mergenthaler. For examples — “ Clifton Manufacturing Company ” for “ Clifford Manufacturing Company ” and “ A. 0. Schumacher & Sons ” for “ A. 0. Schoonmaher. & Sons.” It was the appellant an employee of Mergenthaler — who arranged for the printing of invoices bearing the name of the fictitious creditors. Lobel also caused to be made a rubber stamp similar to the stamp used by the Mergenthaler purchasing department, and had a special die cut which duplicated the trade-mark of the creditors trade names were simulated. On October 12, 1945, Lobel delivered to Nickel the printed forms of simulated invoices and the rubber stamp. At that meeting he and Nickel arranged to meet on Monday nights at an agreed place where Nickel was to deliver any checks he had stolen and collect his share of the proceeds of any checks Lobel had been able to cash. It was also agreed at that meeting that Lobel was to establish, a bank account under an assumed name as owner of the fictitious creditor Clifton Manufacturing Company

It was at this point that Lobel sought the aid of the appellant Cohen to assist him in opening a bank account under an assumed name. Such account — in the name of ‘ ‘ Robert A. Burton ’ ’ — was opened at the Modern Industrial Bank where Cohen introduced Lobel. ■ •

To establish the appellant Cohen’s complicity in the larcenies the prosecution introduced evidence to prove that acts by Cohen aided Lobel in reducing the stolen checks to cash. To that end is evidence that Cohen introduced Lobel to the Modern Industrial Bank where Lobel was known bn that bank’s books and to its officers as Burton Lobel was also introduced by Cohen to West Thirty-Fifth Street Trading Company — a check-cashing agency, where Cohen informed the check casher — according to the latter’s he [Cohen] is sending somebody down with a check, that I [the check casher] can cash it; that he [Cohen] is'going to stand in back of it.” When the bearer (Lobel) of the check — known by the check casher as ‘ ‘ Mr. Clifton ’ ’ — arrived to have a check cashed he stated he had been sent there by Cohen. In fact, other checks totaling more than $50,000 were cashed by Lobel at that agency and by the same check casher who testified — “ I asked Mr. Cohen whether if anything happens to these checks, if they bounce, ‘ Will you make them good? ’ and he [Cohen] said Yes ’.” Cohen also introduced Lobel to a notary public who — as an incident in the cashing of certain checks — was induced to notarize two “ trade certificates ” which had already been signed by Lobel under the fictitious names of “ Clifton Manufacturing Company ”, “ John B. Clifton ”, “ Alfred A. Schu-macher ”, “ Frank Schumacher ”, “ George Weber ” and “ George Scher ”. When the notary inquired of Cohen as to the certificate What is this?’ ” Cohen assured him— “ ‘ It is O. K.’ ” When the time came for Lobel to secure cash on checks delivered to him by Nickel and drawn to the order of the fictitious creditor of Mergenthaler A. O. Schumacher & Sons ” — it was Cohen who, when asked by the Atlantic Trading Company — another check-cashing agency — whether a Mergenthaler check drawn to O. Schumacher ” should be cashed, said “ ‘ It is all right, any time he comes in with those checks, you can cash it.’ ” With that assurance by Cohen, Atlantic Trading Company cashed thirteen Mergenthaler checks drawn to the same fictitious payee in amounts totaling in excess of $52,000.

There were denials by the appellants Lobel and Cohen that they were involved in cashing stolen checks. Lobel testified that he was “ just a messenger boy ” for Nickel and that, believing the Mergenthaler checks upon which he secured cash were connected with “ black market ” transactions, he was paid 5% for cashing them. Cohen denied knowledge of any of the transactions in -which, the Mergenthaler checks were involved.

We thus reach a consideration of the point of law, chiefly stressed by each appellant, that the trial court erred in allowing proof by the prosecution of false and fraudulent representation and pretense.

The larceny counts set forth in the indictment, of which the tenth count is typical, charge the defendants as follows:

“ TENTH COUNT

“ The GteaNd Juet op the Coukty op KiNgs, by this indictment, accuse the defendants, W. Arthur Nickel, Julius Lobel, alias Jimmy Collins, alias John B. Clifton, alias Alfred 0. Schumacher,. alias Robert Bell, alias George Weber, Isidore Rapoport and Irving Cohen, of the crime of GraND LarceNY m the First Degree, committed as follows:—

“ The defendants, W. Arthur Nickel, Julius Lobel, alias Jimmy Collins, alias John B. Clifton, alias Alfred 0. Schu-

'The appellants’ argument has as its basis a portion of section 1290-a of the Penal Law, presently to be quoted, which is one of the enactments by which the Legislature of 1942 endeavored to put an end to the confusion and injustice which frequently had resulted from the administration of section 1290 of the Penal Law as it then read. That statute, prior to its repeal in 1942, set forth a definition of larceny which comprehended the separate crimes of larceny, embezzlement and false pretenses — with the result that the judgments of our courts following trials involving larceny often rested upon those nice distinctions which exist between common-law larceny by asportation, common-law larceny by trick and device, obtaining property by false pretenses, and embezzlement (People v. Noblett, 244 N. Y. 355, 359-360; People v. Miller, 169 N. Y. 339, 351-352; and, see, L. 1942, ch. 732, § 1).

The prefatory declaration of legislative policy found in the first section of chapter 732 of the Laws of 1942 — which statute repealed section 1290 of the Penal Law, and added two new sections thereafter to be known as sections 1290 and 1290-a — states the purpose of that enactment to have been to avoid confusion and injustice and to abolish the distinctions which had theretofore “ differentiated one sort of theft from another ”. By the new section 1290, the Legislature, after defining larceny as a single crime, added the following provisions:

Hereafter it shall be immaterial in, and no defense to, a prosecution for larceny that: 1. The accused obtained possession of, or title to, such property with the consent of the person from whom he obtained it, provided he induced such consent by a false or fraudulent representation, pretense, token, or writing; or

‘ ‘ 2. The accused in the first instance obtained possession of, or title to, such property lawfully, provided he subsequently wrongfully or appropriated such property to his own use or the use of any person not entitled to the use and benefit of such property; or

“ 3. The person from whom the accused obtained such property intended to part with title to, as well as possession of,, such property, or with possession as well as title; or

“ 4. The purpose for which the owner was induced to part with possession of such property was immoral or unworthy.”

After making impotent as defense measures the confusing distinctions already mentioned which prompted the 1942 legislation, the Legislature inserted the new section 1290-a which provides :

“ § 1290-a. PleadiNG AND PROOF. In any prosecution for larceny it shall be sufficient if: 1. The indictment or information charges that the accused, with the intent to deprive or defraud another of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of some person other than the true owner, stole any property of any of the kinds mentioned in section twelve hundred ninety of this article. If, however, the theft was effected Toy means of any false or fraudulent representation or pretense, evidence thereof may not he received at the trial unless the indictment or information alleges such means; hut as long as one of the false or fraudulent representations or pretenses alleged he proven, any other related representation or pretense, though not alleged, may he given in evidence.

2. The indictment or information is supported by proof of the commission by the accused of any one of the acts that constitute larceny as defined in this article.” (Italics supplied.)

Relying on the italicized portion of the statute last quoted above, the appellants contend that the thefts upon which the indictment before us is based were effected ” by means of false and fraudulent representation or pretense, and that therefore — false pretense not being charged in the indictment — the evidence given by Nickel and the Mergenthaler officers descriptive of certain false pretenses was erroneously received in evidence.

The district attorney does not dispute that a false invoice is a false representation. Nor is it disputed that false invoices were used to induce Mergenthaler officers to sign the checks upon which the named payee-creditors were fictitious. Arguing for the affirmance of the judgments of conviction, the district'attorney points to the fact that the trial conrt charged, without exception, that the larcenies set forth in the indictment were mitted nntil the occurrence of Nickel’s act of placing the Mer-genthaler checks in his pocket. Upon that subject the court charged further, without exception, — ‘ ‘ Just so long as these checks were going around in the Mergenthaler Company, regardless to whom they were made out, fictitious or otherwise, no larceny was committed. The larceny was committed, if at all, at the moment when Nickel pocketed the check with intent to steal it. Is that clear?” As those instructions to the jury went unchallenged by either appellant and thus became the law of the case, we must assume the jury, in reaching its verdict, gave full heed to them. (People v. 286 N. Y. 132, 135; Mulder v. U. S. Slicing Machine Co., 228 N. Y. 88, 91.)/ In this view, we conclude that it cannot be said — within the language of section 1290-a that the thefts charged in the indictment were effected by means of any false or fraudulent representation or pretense which preceded the act of thievery and, accordingly, evidence thereof was properly received at the trial. The larcenies which occurred at the moment Nickel placed the checks in his pocket were outright surreptitious thefts of property belonging to Mergenthaler. That the larcenous taking in no instance was “ effected ” by false pretense is borne out by testimony of the Mergenthaler signatory officers that they had no knowledge that the payees named therein were fictitious but believed them to be bona fide who had furnished supplies to Mergenthaler. The signatory officers testified further that they did not intend that Nickel, Lobel or Cohen should receive the checks or any of the proceeds therefrom.

The requirement found in section 1290-a that, where a larceny is “ effected ” by false pretense, such false pretense must be alleged, is not new. It had previously been required, in charging larceny by false pretense, to allege in the indictment at least one of the misrepresentations (People v. Peckens, 153 N. Y. 576, 588). The word “ effected ”, as defined by Webster’s New International Dictionary, is “To produce; to do; to make; to bring to pass; to execute; enforce; accomplish.” It would, •therefore, appear in the present case that the false invoices did not “produce ”, nor did they “ bring to pass ”, nor “ accomplish. ” the larcenies. The false pretenses served only to produce those checks which later were stolen.

We do not find in the'language of section 1290-a an indication that the Legislature intended that every false representation occurring in the course of dealings which led up a larceny need be pleaded, regardless of the fact that prior false representations served only to produce the item of property stolen thereafter. It is only where the theft itself is “ effected ” by false pretense that false pretense must be pleaded in the indictment to make evidence thereof admissible at the trial. As we read subdivision 1 of section 1290 of the Penal Law, a larceny effected by false pretense is not proven unless it appears that the owner of property, relying upon a false representation, voluntarily gives the thief possession or title to that property. If, as in the present case, the thief gains possession of title to the property without the owner’s consent, it cannot be said — within the language of section 1290-a — that the theft was effected ’ ’ by false pretense, despite the fact that prior to the actual theft false representations were made which produced the property stolen. Stated otherwise —■ to exclude evidence of a false representation which preceded or led up to a larceny, it must appear that the owner, relying upon the misrepresentation, voluntarily parted with possession of or title to the property. As already indicated the record at hand contains no evidence of any act of Mergen-thaler by which it voluntarily gave to Nickel or to either appellant the checks here involved for such use as they might choose to make of them. None of the checks were payable to bearer; all of them were payable to creditors of whom many were fictitious and not known to the Mergenthaler signatory officers. It follows that title to none of the checks passed from Mergen-thaler by the larcenous act by which Nickel took possession of them, which act was certainly not within the scope of his duties. (See Negotiable Instruments Law, § 28, subd. 3; City of New York v. Bronx County Trust Co., 261 N. Y. 64.)

Nor do we agree with the appellants’ position that the trial court erred in receiving evidence of false and fraudulent representation or pretense over objections that such evidence was incompetent, irrelevant and immaterial. We have seen that the indictment charged-that the acts and transactions alleged in the several counts are ‘ connected together and constitute part of a common plan and scheme. ” As to the consideration to he given by the jury to evidence of false pretenses the court charged, without exception, that — “ the only crimes with which these defendants ar© charged are contained in. the counts of the indictment which I am submitting to you for your determination. With respect to the theft of the Schumacher and Clifton checks, there is evidence before you that the invoices with respect to those checks were forged, that the proceeds of these checks were stolen. That evidence you may consider only as bearing on the question of the criminal intent or common plan and scheme of the defendants in the commission of the crime with which they are charged, namely, the theft of the checks'. In other words, mere proof of the forgery of the invoices and the theft of the proceeds of the checks would not be enough to justify you in convicting either of the defendants of the larceny of the checks unless you are convinced beyond a reasonable doubt that they did steal those checks, acting in concert with each other. The other evidence, as I have said, bears only on the question for you to determine, that is, the intent or common plan or scheme of the defendants in the commission of the crimes charged against them. ” It is our conclusion that the descriptive of the making of false invoices, and the different steps by which the stolen checks were cashed, was evidence which was competent, relevant and material to the charges contained in the indictment that the acts and transactions of which the appellants are accused were connected together and constituted part of a common plan and scheme.

The appellants contend that the absence of an allegation in the indictment of fraudulent representation or pretense led them to enter upon the trial without knowledge that they would be called upon to defend themselves against charges of fraud and false pretense. ' It appears of record that after the trial had commenced and at a time when counsel for each appellant was in court, the trial judge stated in connection with his rulings upon certain motions — “ All of the counts with respect to the forging and uttering of the so-called fake invoices will be dismissed on the ground that the alleged crimes were not committed within the jurisdiction of this court. ’ ’ Although the record submitted to us does not contain the forgery counts thus dismissed, the district attorney’s brief contains the denied by either appellant — that ‘1 The record shows that counts 404 to 470 of the indictment charged appellants with forging and uttering the Clifton and Schumacher invoices which were used to induce the signing of the Proceeding, as we do, upon the assumption that “ The purpose of the averment of pretenses in the indictment is only to give the defendant notice of what may be proved against him, and the mode of obtaining* the property need not be pleaded ” (People v. Peckens, 153 N. Y. 576, 588, supra), we cannot say, in the circumstances disclosed by the presence in the original indictment of sixty-six charges which accused the appellants of forging and uttering the Clifton and Schumacher invoices, that either appellant entered the trial without knowledge that he would be called upon to defend himself against charges of fraudulent and false pretenses.

The appellants also claim that they were denied due process of law under the Fourteenth Amendment of the Federal Constitution, the asserted ground being that they were tried by jurors as to whom one appellant or the other had interposed a peremptory challenge. It appears from the record that where both appellants did not join in a peremptory challenge to a juror, the trial court ruled that the juror should be sworn. We think such ruling by the trial court was correct. Section 360 of the Code of Criminal Procedure provides — ‘ ‘ When several defendants are tried together they cannot sever their challenges, but must join therein.” Interpreting that statute this court has had occasion to say “ The matter of peremptory challenges rests entirely with the Legislature. (People v. Cosmo, 205 N. Y. 91, 95, 97; People v. Dunn, 157 N. Y. 528, v. Missouri, 120 U. S. 68, 69, 70.) If this were a question of challenges for cause, it would be another matter. The Legislature has no such discretionary power as to challenges for cause. * * * The defendants under this section must unite in their challenges ” (People v. Doran, 246 N. Y. 409, 426, 427).

In addition to matters to which reference is made above we have given consideration to evidentiary rulings and conduct by the trial court which the appellants challenge as prejudicial to their legal rights and to which the briefs of counsel direct our attention.

Our conclusion is that the judgment as to each of the defendants should he affirmed. v ■

(diss’enting as to defendant Cohen). I concur with Judge Lewis’ opinion except that, as to appellant Cohenr I vote to reverse the conviction, and for a new trial. All the testimony as to Cohen’s connection with these larcenies is circumstantial and equivocal only, not direct. That testimony, since it does not “ exclude to a moral certainty every hypothesis except that of guilt ” and is “ ‘ consistent with either the hypothesis of innocence or the hypothesis of guilt ’ ”, is insufficient basis for a conviction (People v. Weiss, 290 N. Y. 160, 163, and cases cited). Guilt in a criminal case must be proven beyond a reasonable doubt and so we are forbidden to apply here the rule in civil cases (see Dillon v. Rockaway Beach Hospital, 284 N. Y. 176, 179) that a judgment may he sustained if we find in the record any evidence which supports the inference on which the decision is based.

Puld, J.

(dissenting). I very much fear that this decision of the court may reintroduce some of the confusing uncertainties which the Legislature sought to eliminate from larceny prosecutions some six years ago. Consequently — quite apart from doubts which I entertain as to the sufficiency of the proof establishing the guilt of the defendant Cohen — I cannot concur in tfie affirmance of the conviction of either appellant, for the reason that the mass of evidence relating to false representations was received at the trial in violation of a controlling statute.

Section 1290 of the Penal Law, as it existed before 1942, defined not a single crime of larceny but three separate and distinct offenses, known as larceny, embezzlement and obtaining property by false pretenses. Each had to be prosecuted by a different indictment or by a separate count of the- same indictment, and a vast amount of confusion accompanied the attempt to preserve the identity of each. Indeed, so subtle and nebulous were the distinctions drawn bétween them that not infrequently one categorically proved a thief was able to escape the consequences of his crime because the prosecutor charged the wrong sort of larceny or the trial judge misconceived the type of theft established. (See, e.g., People v. Noblett, 244 N. Y. 355; People v. Dumar, 106 N. Y. 502; Zink v. People, 77 N. Y. 114; see, also, Commonwealth v. King, 202 Mass. 379, 388-390.)

To rid the law of these perplexing refinements and distinctions, the Legislature in 1942 redefined the crime of larceny by completely rewriting section 1290 of the Penal Law (L. 1942, ch. 732). In its preface, the amendatory act declared that it was “ the public policy of the state that the best interests of the people of the state will be served, and confusion and injustice avoided, by eliminating and abolishing the distinctions which have hitherto differentiated one sort of theft from another ”. By explicitly rendering “ immaterial ” the concept of possession ” and “ title ” in prosecutions for larceny, the Legis-laturé put an end to the legal mumbo-jumbo and to the “ very nice ” distinctions (Loomis v. People, 67 N. Y. 322, 329) that had previously plagued prosecutor and court and hindered the effective administration of justice.

The Legislature also added section 1290-a — to regulate the manner of pleading and proof — and it is with that provision that we are concerned. A larceny indictment, it is recited, “ shall be sufficient ” as long as it charges that the accused, possessing the requisite intent, “ stole ” property. If, however, it is further specified, ‘ the theft was effected by means of any false or fraudulent representation or pretense, evidence thereof may not be received at the trial unless the indictment ⅝ * * alleges such means ”.

In the case before us, the indictment, containing 479 separate counts, charged the defendants with the commission of a large number of thefts and forgeries, assertedly connected together and constituting part of a common plan and scheme. The indictment did not contain any allegation of false representation or pretense. Nevertheless, evidence of false representations — which, the district attorney in his opening declared, duped ” the victim’s officers — was concededly, and over objection, received at the trial. The question for determination, then, is whether or no the thefts charged against the defendants were “ effected ” by means of those false representations so as to have required their allegation in the indictment.

Little purpose is to be served by treatment of the evidence. It is sufficient merely to note that the proof indicated, first, that defendants evolved a fairly elaborate scheme which called for false representations — in the form of faked invoices — to induce certain action bn the part of officers of the victimized Mergenthaler Linotype Company, and, second, that it was by means of those faked invoices that defendants contrived to have checks written in such form as best to assure the success of their plan involving the stealing of those checks. There can be no question that the preparation of the invoices, the preparation of the checks to the order of nonexistent firms, the presentation of both invoices and checks to Mergenthaler officers, the signing of those spurious checks by the officers in reliance upon the faked invoices, and under the belief thereby induced that the payees were Mergenthaler creditors —• there can be no question, I say, that all of those acts constituted necessary and vital links in effectuating the larcenous scheme ascribed to defendants. Assuredly, the larcenies proved were, in ordinary understanding, accomplished ” or “ effected ” by means of false and fraudulent invoices and checks. Absent evidence of such false and fraudulent invoices and checks, the People’s case would have taken on a completely different aspect; evidence of different acts, of an entirely different scheme, would have been adduced.

It may well be that none of the thefts was consummated until one of the defendants actually placed the fraudulently-inspired check into his pocket; it may well be that each of those thefts was of the type previously denominated a common-law larceny rather than larceny by false pretenses. But to attach operative effect to either one or the'other of those circumstances, to insist that the false representations did not “ effect ” the crime because they did not immediately induce the victim to part voluntarily ” with title to the property, is but to resurrect the ancient confusion: it is merely another way of saying that the theft committed was old common-law larceny rather than larceny by false pretenses. The net effect is to disregard the clearly expressed legislative design and policy that the distinctions between common-law larceny and false pretenses be eliminated and abolished. In other words, if decision as to whether or not false representations need be alleged, is made to depend upon the pre-1942 type of larceny committed, it is evident, I believe, that we would be perpetuating the very hairsplitting distinction between larceny and false pretenses that the new law sought to do away with. It is, of course, no answer that the attempted distinction is here invoked in favor of the prosecution, for justice to the People demands fairness for the individual.

It cannot he too often repeated or too strongly emphasized that, in enacting the new larceny law, the Legislature declared its aim to he the elimination and abolition of “ the distinctions which have hitherto differentiated one sort of theft from another ” (L. 1942, ch. 732). Obviously, after providing for their abolition, the Legislature did not mean to continue the distinctions in effect for the purpose of determining whether false representations had to be pleaded in the indictment. That enactment — and the redefinition of the crime of larceny — is as significant as any step toward a more rational criminal procedure. Judges should be alert not to detract from its significance or impair its value. The courts may effectuate and carry out the legislative purpose and thereby assure the nonappearance of technicality and confusion, simply by making certain that those distinctions legislatively eliminated remain eliminated and are not imported anew into larceny prosecutions.

A consideration of section 1290-a of the Penal Law confirms my conclusion. That section requires the allegation of false or fraudulent representations if they aided in the consummation of the theft or facilitated its commission, regardless of what the offense may previously have been called. Whether the People could have established the offenses charged in the indictment without introducing evidence of false representation — whether the case would have been legally sufficient or factually persuasive without such proof — is beside the point. Important and consequential is the circumstance that the statute unequivocally provides that evidence of false representations “ may not be received at the trial unless the indictment # * ⅜ alleges ’ ’ them. And, as indicated, the necessity for such allegation is not limited to thefts previously prosecuted under the label, obtaining property by false pretenses; in terms, the statute encompasses every case in which false representations were utilized to effect ” or bring about the theft. Consequently, if the People elect to prove that the thieves made use of false representations to induce certain conduct on the part of their victim, and those representations constituted an integral part of the scheme devised to steal the property — as is the case here — the theft is one “ effected ” by those misrepresentations-, and the indictment must set them forth.

In my view, therefore, there should bé a reversal. The People should determine whether to retry the case on the present indictment — and desist from offering proof of false representation — or to seek a new indictment alleging the essential false representation and pretense.

I would reverse the judgments and order a new trial.

Conwat, Thacher and Dye, JJ., concur with Lewis, J.; Desmond, J., concurs in separate opinion as to defendant Lobel but dissents and votes to grant a new trial as to defendant Cohen; Ftjld, J., dissents as to both defendants in an opinion in which Lotjghran, Ch, J., concurs.

Judgments affirmed. [See 298 N. Y. 920.]


author: Desmond, J.

text:
    Ib Chr Sonnesen, Appellant, v. Panama Transport Company, Respondent.
    Argued October 11, 1948;
    decided November 24, 1948.

      Jacob Bassner and Robert Klonsky for appellant.
    I. The reversal by the Appellate Division on the basis of the weight of evidence was without authority in law. (Ruggiero v. Liberty Mut. Ins. Co., N. T. L. J., Oct. 21, 1947; Hust v. Moore-McCormack Lines, 1947 AMC 1089; Pariser v. City of New York, 146 F. 2d 431; Southern Ry. Co. v. Bennett, 233 U. S. 80; Herencia v. Gusman, 219 U. S. 44; Parsons v. Bedford, 3 Pet. [U. S.] 433; Slocum v. New York Life Ins. Co., 228 TJ. S. 364;
      Johnson v. DierJce Lumber & Coal Co., 130 P. 2d 115; Minneapolis & St. Louis B. B. Co. v. Winters, 242 IT. ,S. 353; Davis v. Schwartz, 155 U. S. 631; United States v. United Shoe Mach. Co., 247 IT. S. 32; Barlow v. Pan Atlantic S. S. Corp., 101 F. 2d 697.) II. The weight of evidence in a maritime tort case is a matter of substantive law to be determined by the trier of the facts and consequently it is not a subject of review by an appellate court. {Howard v. Louisiana & A. By. Co., 49 F. 2d 571; Baltimore & Ohio B. B. Co. v. Groeger, 266 IT. S. 521; Fairmount Glass Works v. Cub Fork Coal Co., 287 IT. S. 474.) I'll. The facts constituted negligence, irrespective of whether a mistake of judgment was the proximate cause. {The Governor, 230 F. 857; The Iroquois, 194 IT. S. 240; The Svaeland, 132 F. 932; The C. S. Holmes, 237 F. 785; Morris v. United States, 3 F. 2d 588; The M. E. LucJcenback, 174 F. 265; Cortes v. Baltimore Insular Line, 287 IT. S. 367; The Point Fermin, 70 F. 2d 602;.Stevens v. B. O’Brien & Co., 62 F. 2d 632; North Alaska Salmon Co. v. Larsen, 220 F. 93; Biley v. Agwilines, Inc., 296 N. Y. 402; Kuhn v. City of New York, 274 N. Y. 118.) IV. Where the disease is caused or aggravated by service on the vessel, and the time is definitely fixed by medical experts as to when the best cure possible would be attained, then the seaman is entitled to a sum which would reasonably compensate him until he attains the best cure possible. {Bey v. Colonial Nav. Co., 116 F. 2d 580; Cortes v. Baltimore Insular Line, 287 IT. S. 367; Morris v. United States, 3 F: 2d 588; The Korea Maru, 254 F. 397; Cresci v. Standard Fisheries, 7 F. 2d 378.)

      Walter X. Connor and Vernon Sims Jones for respondent.
    I. The Appellate Division has full power and authority to review questions involving maritime law and correctly dismissed plaintiff’s suit for failure to prove a cause of action under any law. {Baltimore & Carolina Line, Inc., v. Bedman, 295 IT. S. 654.) II. The Appellate Division had full power to set the verdict aside and order a new trial on the ground that it was against the weight of evidence. There is no Federal law which precludes the exercise of such power. {John v. Paullin, 231 IT. S. 583; Herb v. Pitcairn, 324 IT. S. 117; Mahnich v. Southern S. S. Co., 321 IT. S. 96; Stokes v. United States, 144 F. 2d 82.) III. Plaintiff failed to prove that any act or omission of the ship’s personnel caused his tuberculosis or that defendant failed to proper and timely medical treatment. The Appellate Division correctly dismissed the complaint because of lack of evidence. (De Zon v. American President Lines, Ltd., 318 U. S. 660; Barlow v. Pan Atlantic 8. 8. Corp., 101 P. 2d 697; The Van Der Duyn, 261 F. 887; Willey v. AlasJca Packers’ Assn., 18 F. 2d 8.) IV. Plaintiff failed to prove any right to future maintenance under the doctrine established by the United States Supreme Court, and the Appellate Division correctly held that there was no evidence to support a verdict for maintenance. (Calmar 8. 8. Corp. v. Taylor, 303 U. S. 525; Lindgren v. Shepard 8. 8. Co., 108 F. 2d 806; Harden v. Gordon, 11 Fed. Cas. No. 6047; Reed v. Canfield, 20 Fed. Cas. No. 11641; The Boulter No. 2, 241 F. 831; Marshall v. International Mercantile Marine Co., 39 F. 2d 551; Stewart v. United States, 25 F. 2d 869; Stokes v. United States, 144 F. 2d 82; Bailey v. City of New York, 153 F. 2d 427; The Pochasset, 295 F. 6; The Saguache, 112 F. 2d 482.)
   Desmond, J.

In October, 1943, plaintiff, a young Danish seaman, then in apparent good health, signed articles at New York City for a voyage of not more than twelve months’ duration in worldwide trade ” and back to a final port of discharge in the united states ”, on one of defendant’s vessels. Defendant is a Panamanian corporation and its ships are registered under the laws of the Republic of Panama. On the outbound trip, which was through the Panama Canal and across the Pacific, plaintiff, according to some of the testimony, made repeated complaints to the ship’s officers that he was ill. He was, however, kept at his duties. When the ship docked at the United States Naval base at Funafuti in the Ellice Islands in the South Pacific, an officer of the ship took plaintiff on board a United States Naval ship there stationed, to consult a Navy physician. That physician gave plaintiff such examination as the facilities of the place made possible, found some indications of, or suspected, tuberculosis,- and recommended to the officer that plaintiff be hospitalized at the nearest port. The ship’s officers, according to plaintiff’s testimony at this trial, did not, even then, relieve Mm from deck duty, but kept him at work for some two weeks after leaving Funafuti. He was then ordered to bed aboard sMp, and, when the ship reached the Panama Canal Zone, bound back to the Atlantic, was sent to a hospital, and has ever since been confined to hospitals, suffering from tuberculosis. Medical opinion testimony offered by plaintiff was to the effect that the ship’s officers had been guilty of bad practice toward plaintiff, which had aggravated his illness.

The complaint in the present suit, in which the above was testified to and apparently accepted by the' jury, contained two alleged causes of action. The first count charged a negligent failure to furnish plaintiff prompt and proper medical attention, and sought recovery under the Jones Act (U. S. Code, tit. 46, § 688). The second count was for maintenance and cure. The verdict gave plaintiff damages on each count. The Appellate Division, as to the first'cause of action, found it unnecessary to decide whether or not the Jones Act applied, the court stating that, whether that statute applied or not, a similar cause of action was available under the general maritime law, citing Cortes v. Baltimore Insular Line (287 U. S. 367), and that it was to be assumed that the laws of Panama are the same as ours in this respect. The Appellate Division, however, refused to allow a recovery on that first cause of action, but, reversing on the facts and the law, dismissed it on the law for failure of proof, holding that there had been proven, at most, no more than an error in judgment, but no negligence under the Jones Act and no breach of general maritime law. The second, or maintenance and cure, cause of action, also, was dismissed by the Appellate Division (likewise a reversal on the law and the facts, with a dismissal on the law), the court ruling that plaintiff had shown no present need for maintenance or cure beyond what he was now receiving without cost (in a marine hospital) and that there was no showing that he would need any other maintenance or cure in the immediate future, for any definitely ascertainable time. This dismissal was without prejudice to the later institution of another suit for maintenance and cure, if necessary.

"We now take up those two causes of action separately.

We think the jury was justified, on the evidence, in finding that defendant’s conduct toward plaintiff was wrongful and tortious (see Scarff v. Metcalf, 107 N. Y. 211; Cortes v. Baltimore Insular Line, supra, 287 U. S. at pp. 372-376) but we find no basis for applying the Jones Act to that wrong. That statute, setting up a right of action for seamen against shipowners for negligence, has been made available even to sailors who were foreign nationals, in situations where there was some other element or elements justifying the coverage of this statute of the United States (see Gerradin v. United Fruit Co., 60 F. 2d 927, certiorari denied 287 U. S. 642; Gambera v. Bergoty, 132 F. 2d 414, certiorari denied 319 U. S. 742; Kyriakos v. Goulandris, 151 F. 2d 132). But no case we know of goes so far as to bring within the protection of the Jones Act a seaman of foreign residence and nationality, suing a non-American shipowner for an alleged tort committed on a non-American ship on the high seas. In so concluding, we have not overlooked the bit of testimony that this tanker was under a time or voyage charter to the United States Navy; the complaint alleges, the answer admits, and all the proof is, that the operation and control was in defendant. Nor does the signing of articles in an American port bring American law into the case (The Karma Nielsen, 273 F. 171).

The general rule of maritime law is that tort liability on the high seas is determined by the law of the flag Cunard White Star, 160 F. 2d 446; see Resigno v. Jarka Co., 248 N. Y. 225, 230; Robinson on Admiralty, pp. 238-239), which, in this case, is the law of Panama. We agree with the Appellate Division that under American general ”, or deci-sional, maritime law, outside the Jones Act, there was, and is, recovery for a wrongful failure of the ship to give appropriate medical care while at sea (Cortes v. Baltimore Insular Line, supra; also The Osceola, 189 U. S. 158, and The Iroquois, 194 U. S. 240). But that law, like the Jones Act and for the same reason, is inappropriate in the present situation. We are not entitled to assume that the maritime law of Panama (a “ civil law ” country) is the same as ours, or as any part of ours (Ozanic v. United States, 165 F. 2d 738, 744). Furthermore, we do not think this an appropriate case in which, under section 344-a of the Civil Practice Act, to take judicial notice of the foreign law. Since the trial was on an erroneous theory, we, in the interests of justice, order a reversal and grant a new trial as to the first alleged cause of action.

As to the second cause of action, we agree with the Appellate Division that since plaintiff was, when the suit was tried, getting adequate care and being maintained at no cost to himself, and since the proof did not show any likelihood of a change in those respects in the near future, the case would not seem to come within our American rules as to maintenance and cure (Calmar S. S. Corp. v. Taylor, 303 U. S. 525). The law of Panama may be about the same (see Eights of a Seaman on a Ship under Panamanian Eegistry, Berguido, 19 Temp. L. Q. 458). However, since a new trial must he granted as to the first cause of action, we think there should be a similar disposition as to the second.

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

Loughran, Ch. J., Lewis, CoNway, Dye and Fixed, JJ., concur.

Judgments reversed, etc.