author: Pound, J.

text:
    Leslie Jenkins, Respondent, v. John Hancock Mutual Life Insurance Company, Appellant.
    (Argued October 2, 1931;
    decided October 20, 1931.)

      Thomas McCall, Leonard M. Gardner and Frederick C. Tanner for appellant.
    The material misrepresentations made by the insured rendered the policies of insurance void. (Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Minsker v. John Hancock Mut. Life Ins. Co., 254 N. Y. 333; Schrader v. John Hancock Mut. Life Ins. Co., 232 App. Div. 644; Saad v. New York Life Ins. Co., 201 App. Div. 544; 235 N. Y. 550; Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208; Cirrinciani v. Metropolitan Life Ins. Co., 223 App. Div. 461; Nowak v. Brotherhood of America Yeomen, 249 N. Y. 78; 252 N. Y. 465; Hoff v. Hoff, 175 App. Div. 40; Kwiatkowski v. Brotherhood of American Yeomen, 216 App. Div. 647; 243 N. Y. 394; Baumann v. Preferred Accident Ins. Co., 225 N. Y. 480; Cushman v. United States Life Ins. Co., 70 N. Y. 72.)

      Robert M. Hitchcock for respondent.
    As a matter of law it cannot be held that the evidence of previous medical attention is sufficient to constitute either fraud or material misrepresentation. (Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Minsker v. John Hancock Mut. Life Ins. Co., 254 N. Y. 333; Eastern District P. D. Works v. Travelers Ins. Co., 234 N. Y. 441.)
   Pound, J.

The action is brought on a life insurance policy for $3,000 issued by the defendant on the life of Martha Jenkins without a medical examination. The policy was applied for on April 11, 1929. The insured died on July 27,1929. The cause of death was pulmonary tuberculosis.

In her written application for the policy, attached to and made a part thereof, the insured, having stated that she was at the time in good health, was asked the following question: Have you ever had or been treated for any of the following? Answer yes or no to each. If yes, give full particulars in space below.” Then follows a list of twenty-seven enumerated diseases and a question, “ any surgical operation? ” The list includes consumption, pleurisy and discharge from the ear. A blank space is left for “ details of illnesses recorded above.” To each of these questions the applicant recorded a negative answer. To a question, “ have you ever received or apphed for treatment in any hospital, dispensary, sanitarium, cure or other institution? ” she answered in the negative. Then followed the question, “ have you within the past five years had medical advice for any disease or disorder not included above? Give full particulars.” She answered, no.”

The proofs of death include a certificate of Dr. Lang, in which he says he treated the' insured for a week in March, 1929, for acute tonsilitis, and again in April, 1929, for pleurisy, dry bronchitis, and that further examination revealed a tubercular affliction. He testified, however, that at some uncertain date, which perhaps was April 4. 1929, but might have been July 4, he treated the insured and reported her case to the bureau of preventable diseases in the city Department of Health. The Appellate Division came to the conclusion that the evidence of Dr. Lang as to the date when he treated the insured for tuberculosis in relation to April 11, 1929, the date of the application, was sufficiently conflicting to make a question of fact for the jury whether he had treated her before or after that date.

Another certificate was furnished by Dr. Matez. He says he treated the insured for a week for grippe in April, 1928; May 9, 1928, for two weeks for purulent otitis of the right ear, and September 14, 1928, for salpingitis, left. Purulent otitis means medically an inflammation of the ear with discharge of pus. Salpingitis is inflammation of a Fallopian tube. Insured was absent from work four days with the grippe but she did not leave her work on the other occasions when she consulted Dr. Matez.

Another certificate was made by Dr. Conklin. He attended her during her last illness at the hospital where she had been for three weeks prior to her death. He had been her attending physician from May 31, 1929. His opinion from the patient’s statement was that her health was first impaired three years ago. Dr. Williams, another attending physician at the hospital, certifies to the same effect. Nothing conclusive appears in these certificates and Dr. Rosenfield, another attending physician, says that in his opinion her health was first impaired in May, 1929.

On this evidence the trial justice set aside a verdict in favor of plaintiff, who was the husband of the insured and the beneficiary named- in the policy, and dismissed the complaint. The Appellate Division reversed and reinstated the verdict on the ground that although the insured died of pulmonary tuberculosis (which is a form of consumption which may have a brief duration but is said to be most common as the termination of a chronic affection of the lungs), it did not appear that she had been treated for that disease before the policy had been taken out, and the jury might find that the ills for which she had consulted a physician prior to applying for insurance were trivial disorders which had not affected her present state of health. (Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Nowak v. Brotherhood of American Yeomen, 249 N. Y. 78; 252 N. Y. 465.)

In the case last cited it was held that in that particular instance and as there shown, the juxtaposition of the questions controlled and limited the meaning of the language used so as to permit the inference that only ailments affecting general health were covered by the question: “ Have you ever consulted a physician? ” The court was at pains to qualify its holding by stating that it is not to be taken as authority for the proposition that in all cases questions as to consultations with a physician must be taken to relate only to communications between doctor and patient in respect to grave bodily disorders. In the case before us the first question after those calling for her name and date of birth was whether she was in good health. Then followed the question as to specific maladies, including discharge from the ear. This question plainly indicated that the insurer wished to know the details of any professional treatment for discharge from the ear in order to decide whether it would issue a policy. The insurer did not make this a trivial inquiry, limited to cases where the patient was kept from work by the malady. It was made material to the risk. The insurer so determined and it was not for the insured to pass it over as trifling. “Although no disease may have developed, symptoms which had required medical attention might indicate conditions from which disease might be generated.” (Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Minsker v. John Hancock Mutual Life Ins. Co., 254 N. Y. 333.) The untruthful answer defeats recovery on the policy. A truthful answer might have been followed with a medical examination or further inquiry.

We are also of the opinion that the answer to the further question as to other medical advice and the “ full particulars thereof ” constituted a material false representation. It is a strict but humane ruling that when the insurer asks the applicant to say merely whether he has consulted a physician for any disease or disorder not enumerated in the list, the insured, if in good health at the time, need not recall his visits for medical advice for such minor ills as constipation or common cold in the head, which are readily relieved by simple remedies and do not impair his general health. Here the undisputed evidence is that Dr. Matez had attended the insured on three separate occasions within the year prior to the making of the. application. The case is not one where the insured, in good health at the time of applying for insurance, fails to give the details of a call on the doctor now forgotten and immaterial to the risk.. The insurer was entitled to know, if it made proper inquiry, the medical history of a case where insured had been consulting physicians within the year and died soon after the policy was issued. Whether or not a recent attack of grippe or influenza is, standing alone, important enough to be mentioned, discharge from the ear is on the list of enumerated disorders which must be reported. If a medical examination had been required the company might have learned the facts. As no medical examination was required the company acted on the truthfulness of the material representations of the insured. The doctrine of the American Yeomen Case (supra) should not be extended beyond its reasonable implications.

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

Cabdozo, Ch. J., Ceane, Lehman, Kellogg, O’Beien and Hubbs, JJ., concur.

Judgment reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Steinkritz Amusement Corporation, Respondent, v. Sam Kaplan, as President of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators’ Union, Appellant.
    (Argued October 8, 1931;
    decided October 20, 1931.)

      Jeremiah T. Mahoney and Vincent L. Leibell for appellant.
    The conclusions and judgment granting a sweeping injunction against appellant prohibiting all picketing are not sustained by any findings that appellant had been guilty of violence, trespass, disorder, interference or intimidation, nor by any evidence that would warrant such findings as to any acts so numerous or so serious in character as to justify the injunction. (Murray Co. v. Lidgerwood Mfg. Co., 241 N. Y. 455; Wood Mowing & Reaping M. Co. v. Toohey, 114 Misc. Rep. 185; Matter of Case, 214 N. Y. 199; People v. Nixon, 248 N. Y. 182; People v. Wecker, 140 Misc. Rep. 388; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Nann v. Raimist, 255 N. Y. 307; Tree-Mark Shoe Co. v. Schwartz, 139 Misc. Rep. 136.) In any event the injunction is too broad and should be limited to restraining the display of a sign with the word “ strike.” (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Nann v. Raimist, 255 N. Y. 307; Wilner v. Bless, 243 N. Y. 544; Reed Co. v. Whiteman, 238 N. Y. 545; Grassi Contracting Co. v. Bennett, 174 App. Div. 244.)

      Benjamin Lifshitz and Reuben Honigman for respondent.
    Defendant’s campaign of violence and intimidation, and its conduct in falsely stating that there was a strike in progress at plaintiff’s theatre, warrant the granting of the injunction. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Cook v. Wilson, 108 Misc. Rep. 438; Wilner v. Bless, 243 N. Y. 544; Erie R. R. Co. v. International Ry. Co., 209 App. Div. 380; 239 N. Y. 598; Marvin v. Insurance Co., 85 N. Y. 278; Reed v. McConnell, 133 N. Y. 425; People v. Supervisors, 70 N. Y. 228; Ostrander v. State of New York, 192 N. Y. 415; First Nat. Bank v. Chalmers, 144 N. Y. 432; Ogden v. Alexander, 140 N. Y. 356; Meyer v. Lathrop, 73 N. Y. 315; People v. Barker, 152 N. Y. 417; Matter of Santrucek, 239 N. Y. 59; Newburger v. American Surety Co., 242 N. Y. 134; Kissam v. U. S. Printing Co., 199 N. Y. 76; Stillman v. City of Olean, 228 N. Y. 322.)

      Frank P. Walsh and Gardiner Conroy for William JF. Canavan, amicus curiae.

    No unlawful means are involved. (Nann v. Raimist, 255 N. Y. 307; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Wilner v. Bless, 243 N. Y. 544; Reed Co. v. Whiteman, 238 N. Y. 545.)
   Per Curiam.

The evidence presented a question of fact which when resolved in favor of the plaintiff justified the granting of an injunction restraining the defendant from picketing the premises in question.

In the case of Exchange Bakery & Restaurant, Inc., v. Rifkin (245 N, Y. 260, at p. 269) it was said: Where unlawful picketing has been continued; where violence and intimidation have been used and where misstatements as to the employers’ business have been distributed, a broad injunction prohibiting all picketing may be granted. The course of conduct of the strikers has been such as to indicate the danger of injury to property if any picketing whatever is allowed.”

"Where such an injunction has been granted, This court may not interfere except for manifest abuse.” (Nann v. Raimist, 255 N. Y. 307, at p. 315.)

The injunction granted herein goes beyond restraining the picketing of plaintiff’s premises and acts incidental thereto. It should be modified by striking out the restraining provisions contained therein except those which restrain the defendant and all persons acting under its authority (as therein written) from picketing the plaintiff’s premises, and from “ exhibiting any sign or signs and distributing any notice in front of or in the vicinity of the said premises.”

The judgment should be modified in accordance with this memorandum and as modified affirmed, without costs.

Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur; Cardozo, Ch. J., and Lehman, J., concur, except that they are of the opinion that there is neither finding nor evidence of violence sufficient to sustain the restraint of every form of picketing, and vote to modify the judgment in that respect by limiting the injunction to picketing with an untruthful sign.

Judgment accordingly.


author: Crane, J.

text:
    In the Matter of James C. Crane, Appellant, against John R. Voorhis et al., Constituting the Board of Elections of the City of New York, Respondents.
    (Argued October 22, 1931;
    decided October 23, 1931.)

      James E. Finegan, Carl D. Isaacs and Frederick W. Clifford for appellant.
    If section 249 of the Election Law, as amended, is construed to provide that the name of the petitioner is to appear only in the row reserved to the Republican party, it is unconstitutional. (Matter of Robinton, 128 Misc. Rep. 163; Matter of Hopper v. Britt, 203 N. Y. 144; Matter of Gilfillan v. Beyer, 240 N. Y. 574; Matter of Sullivan v. Beyer, 240 N. Y. 579; Matter of Haskell v. Voorhis, 246 N. Y. 257; People v. Griswold, 213 N. Y. 97.)

      Arthur J. W. Hilly, Corporation Counsel (William E. C. Mayer of counsel), for respondents.
    Section 249 of the Election Law, as amended by chapter 270 of the Laws of 1931, is a valid and constitutional legislative enactment, and has been properly construed, by the respondents in placing the petitioner’s name only in the row or column containing generally the names of candidates for other offices nominated by the Republican party. (Matter of Callaghan v. Voorhis, 252 N. Y. 14; Matter of Haskell v. Voorhis, 246 N. Y. 256; Pouch v. Prudential Ins. Co., 204 N. Y. 281; People ex rel. American Exchange Nat. Bank v. Purdy, 196 N. Y. 270; Schieffelin v. Goldsmith, 253 N. Y. 243; Matter of McAneny v. Board of Estimate, 232 N. Y. 377.)
   Crane, J.

The Board of Elections has prepared a ballot for use in the voting machines for the county of Richmond in the coming election, which carries a full line of nominees for the Democratic and Republican parties; almost a complete line for the Socialist party and a separate line or horizontal row for the Independent party designated by the emblem of a “ Bell ” and the words “ Independent Judiciary.” The candidates of this Independent Judiciary body were nominated by petition for the office of Surrogate, Justice of the City Court and District Attorney. No nominations were made by this party for the other offices to be filled.

The name Frank S. Gannon, Jr., appears in this Independent row or line as nominee for Surrogate and Carl D. Isaacs as nominee for Justice of the City Court. The space for the District Attorney in this row or line is left blank. One James C. Crane was nominated by this Independent Judiciary body for District Attorney but his name does not appear in the place where a voter would naturally look for it, in the row of the Independent Judiciary nominations, but it does appear in the line or row of the Republican nominees with the two emblems, the “ Eagle,” the emblem of the Republican party, and the “ Bell,” the emblem of the Independent Judiciary nominees. Although Crane has received the nomination of the Republican party and has also been nominated by petition by the Independent Judiciary nominators, his name appears but once upon the ballot, and that in the Republican line or row with these two emblems, the Eagle and the Bell. The reason why his name does not appear in the line with the other nominees of the Independent Judiciary nominators is that the Election Law (Cons. Laws, ch. 17), section 249, as amended by chapter 270 of the Laws of 1931, enacted as follows: “ When a person has been nominated for an office by one political party and has also been nominated for that office by one or more independent bodies, unless said independent body or bodies shall have nominated candidates for more than fifty per cent of the offices to be filled, his name sha.11 appear only in the row or column containing generally the names of candidates for other offices nominated by such party, and the name and emblem of such party and of each of such indépendent bodies shall appear in connection with his name.”

The petitioner Crane attacks this law as unconstitutional on the ground that it is unreasonable and unfair to the voter, and an arbitrary direction by the Legislature for the formation of the ballot.

We held in Matter of Callaghan v. Voorhis (252 N. Y. 14) that where an independent body had made nominations for some of the offices to be filled at the coming election and there was a line provided for these nominations that the name of Mr. Justice Callaghan, who had been nominated for the Supreme Court by that body, should appear in its line as well as in that of the Republican party which had also nominated him. In that opinion we did refer to the fact that this body of independent nominators had made up a fairly full and complete ticket. This, however, was an incident and not a rule for the case. What would constitute a sufficient number of nominations to require an independent line or row, and how many nominations should appear in that row to entitle all the nominees of that party or of those nominators to a place in the line, we did not undertake to state. We simply stated the facts as they were.

The underlying principle regarding the franchise and the inviolable rights of an elector under the State Constitution was stated in these words: The whole purpose of the Election Law and of the Constitution under which it is enacted, is that, within reasonable bounds and regulations, all voters shall, so far as the law provides, have equal, easy and unrestricted opportunities to declare their choice for each office. Section 249 of the Election Law is constitutional except in those instances when to apply it would be unfair and prejudicial to a particular class of voters.”

What would be unreasonable and unfair to the voter is a question of fact depending upon the circumstances of each case. It is a judicial question and not a matter for arbitrary legislation. Shall we say, for instance, that an independent party which shall make nominations for forty or forty-five per cent of the offices to be filled, shall be deprived of a nominee for one of these offices because another party has also nominated him, whereas if it had made nominations for fifty-one per cent of the offices, the name of that candidate would be placed in the row of the independent party nominations as well as in another party fine or row? Such an arbitrary selection by the Legislature for the formation of a ballot is to declare beforehand what is or is not fair and reasonable whereas it may appear in the particular instance to be very unfair and very unreasonable.

An independent party or independent nominators might select a Governor, a Lieutenant-Governor, an Attorney-General and a Comptroller; in other words, State officers, and omit the local officers to be elected in a particular county or district, with the exception possibly of a District Attorney or County Court Judge. Because these offices for which nominations have thus been made did not constitute fifty per cent of all the State and numerous county offices appearing upon the ticket, would it be fair to eliminate the District Attorney or County Court Judge from the line of the independent nominators?

We had this question presented to us in Matter of Lynn v. Nichols (254 N. Y. 630). Lynn had been nominated by the Democratic party for the office of Justice of the Supreme Court in the Seventh Judicial District of the State. An independent body, which had adopted the name “ Law Preservation,” also nominated him for that office. At the election fourteen separate and distinct offices were to be voted for, running from the Governor down to the County Commissioner of Public Welfare and County Purchasing Agent. The Democratic party had nominated candidates for all these offices. The Law Preservation group made nominations for only two of the offices, besides that of Lynn for Justice of the Supreme Court, to wit, the Governor and the Attorney-General. Section 249 of the Election Law, as it read at that time, provided that when a person had been nominated for an office by one political party and had also been nominated for that office by one or more independent bodies, bis name should appear only in the row or column containing generally the names of candidates of such party with the emblem of the independent body appearing in connection with his name. We held this provision of the law unreasonable, and, therefore, unconstitutional, and affirmed the decision requiring Lynn’s name to be placed in the row or line assigned to the Law Preservation party. We think that case is controlling upon the facts here presented.

The Independent Judiciary nominators, as before stated, do have a horizontal line in which appear the names of Frank S. Gannon, Jr., for Surrogate, and Carl D. Isaacs for Justice of the City Court, and the next space to the right of Isaacs is left blank, wherein should appear the name of James C. Crane, the candidate for District Attorney, also nominated by this independent body or group. The name does not appear there. It is two horizontal lines above, in the Republican line with the emblem of the Bell as well as the Eagle before it. A voter desiring to vote for the candidates of the Independent Judiciary body and for only the candidates of that body, would be very apt to believe that no nomination had been made for District Attorney. In the short space of time usually taken for puffing the levers of the machine, he might not notice or have his attention called to the fact that Crane’s name appeared as the candidate of that body, not upon the line where it naturally belonged, but two hues above, as the candidate of another party.

The Election Law is aimed to afford facility for ready voting as well as to guard against illegal and dishonest practices. All voters within reasonable regulation must have the same opportunity or else they are disenfranchised within the spirit and meaning of the Constitution. Provided gll have an equal start and fair opportunity to make their independent choice, irrespective of what that choice may be, we must abide under our form of government by the result of the election. The choice, however, of our representatives who rule us must at least, so far as the law itself can make it, be free, open and unrestricted to all. Regulations and restrictions there must be, but these must apply to all alike and not create conditions which make it easy for one but difficult and confusing for another.

This was also the ruling of this court in Matter of Gilfillan v. Beyer (240 N. Y. 579) where we held in effect by our affirmance that there must be no unnecessary discrimination between the independent and the party voter in respect of the facilities offered to him for a prompt and intelligent and ready expression of his choice.

We find no sufficient reason for not placing Crane’s name as a candidate for District Attorney in the horizontal line of the Independent Judiciary nominators together with the other candidates of that body, and do see the apparent unfairness in not doing so.

Coming in conflict with the meaning and intendment of our previous decisions, chapter 270 of the Laws of 1931 is unconstitutional, and the holding of this court in Matter of Lynn v. Nichols, above cited, is to be followed.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs to either party.

Cardozo, Ch. J., Pound and Kellogg, JJ., concur; Lehman, O’Brien and Hubbs, JJ., dissent on the ground that this statute is a reasonable exercise of the legislative power.

Ordered accordingly.


text:
    Claude T. Fox, Respondent, v. Western New York Motor Lines, Inc., Respondent, and William H. Harloff, Appellant.
    (Argued September 29, 1931;
    decided November 17, 1931.)

      Milton L. Baier and Chester F. Lexer for appellant.
    No power resides in any court by reason of the provisions of section 211-a and-section 193, subdivision 2, of the Civil Practice Act to bring in an unsued tort feasor as a party defendant on the motion of his sued fellow tort feasor. (Greenhouse v. Rochester Taxicab Co., 218 App. Div. 224; Rowe v. Denler, 135 Misc. Rep. 286; Haines v. Bero Engineering Construction Corp., 230 App. Div. 332; Price v. Ryan, 255 N. Y. 16; Deuscher v. Cammerano, 256 N. Y. 328.)

      Esmond D. Murphy for respondent.
    There can be no doubt of the propriety of the order joining appellant as a party defendant, or of the power of the court to make such order. (Fedden v. Brooklyn Eastern District Terminal, 204 App. Div. 741; Wichert v. Gallagher, 201 N. Y. Supp. 186; 206 App. Div. 756; Hailfinger v. Meyer, 215 App. Div. 35; Eighth & Ninth Ave. Rys. v. City of New York, 223 App. Div. 316; Fisher v. Bullock, 204 App. Div. 523; Greenhouse v. Rochester Taxicab Co., 218 App. Div. 224; Haines v. Bero Engineering Construction Corp., 230 App. Div. 332; Price v. Ryan, 255 N. Y. 16; Davis v. Hauk & Schmidt, Inc., 232 App. Div. 556; Schenck v. Bradshaw, 251 N. Y. Supp. 316; Riley v. Wood, 139 Misc. Rep. 314; Trashaw v. Altman & Co., 250 N. Y. Supp. 599.)
   Crane, J.

The Appellate Division, following its previous decision in Haines v. Bero Engineering Construction Corp. (230 App. Div. 332), has held that under section 211-a of the Civil Practice Act a defendant in a negligence action may bring in on his motion a joint tort feasor not made a party to the action by the plaintiff. While appreciating the force of the argument and the sentiments expressed in the opinions of that court, yet we find it impossible to sustain the ruling; it is contrary to the wording and purposes of the statute. Section 193, subdivision 2, reads as follows:

“ 2. Where any party to an action shows that some third person, not then a party to the action, is or will be liable to such party wholly or in part for the claim made against such party in the action, the court, on application of such party, may order such person to be brought in as a party to the action and direct that a supplemental summons and a pleading alleging the claim of such party against such person be served upon such person and that such person plead thereto, so that the claim of such moving party against such person may be determined in such action, which shall thereupon proceed against such person as a defendant therein to such judgment as may be proper.”

This section has remained unchanged since the last amendment, chapter 250 of the Laws of 1923. Under it a joint tort feasor could not be brought in on the application of a defendant in the action unless the party to be brought in was hable over to the defendant by reason of contract or status. As the section says in so many words, the third person not then a party to the action must be hable to such party, wholly or in part, for the claim made against such party in the action. Such is not the case between joint tort feasors, unless there is liability over, either through indemnity or contribution or otherwise, existing at the time of the apphcation. (Greenhouse v. Rochester Taxicab Co., 218 App. Div. 224.)

By chapter 714 of the Laws of 1928, section 211-a was added to the Civil Practice Act, and reads as follows:

§ 211-a. Action by one joint tort feasor against another. Where a money judgment has been recovered jointly against two or more defendants in an action for a personal injury or for property damage, and such judgment has been paid in part or in full by one or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution from the other defendants with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment; provided, however, that no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment. Such recovery may be had in a separate action; or where the parties have appeared in the original action, a judgment may be entered by one such defendant against the other by motion on notice.”

The conditions stated in this section must exist before the right to contribution is given. The two or more defendants must be parties to the action at the suit of the plaintiff and a money judgment must have been recovered jointly against them. Under such circumstances the payment of the entire amount of the judgment by one of the judgment debtors gives him the right to collect the pro rata share from the other defendant or defendants. We said in Price v. Ryan (255 N. Y. 16): The Civil Practice Act (§ 211-a) in furnishing to one joint tort feasor a remedy for the recovery of contribution from the other, expressly confines the remedy to cases where a money judgment has proceeded against both. At common law Ryan would have had no cause of action in contribution. Under the statute he has none, since no judgment against his joint tort feasor has been had.” (See, also, Deuscher v. Cammerano, 256 N. Y. 328.)

Section 211-a has in no way modified or extended section 193, subdivision 2, of the Civil Practice Act, or the limitations placed upon it by the courts. The practice under the latter section is the same now as it has been since 1923. Section 211-a sought to remedy one glaring defect in the law. , Where a judgment had been recovered against two joint tort feasors, the payment by one relieved the other of all liability, either to the plaintiff or to the paying defendant. This was changed by requiring the joint defendant to pay his share of the judgment. This is the only change that has been made. A plaintiff may now sue as many defendants as he pleases whom he thinks may be liable in negligence for his damages. The Legislature has not yet given this same choice to the defendants to bring in other parties, whom they think should be Hable either in place of or jointly with those whom the plaintiff has selected. If section 193 is to be extended, it must be by act of the Legislature and not by the fiat of the courts.

The facts of this case to which this law is to be applied are briefly these: The plaintiff commenced an action against the- Western New York Motor Lines, Inc., for negligence in running a motor bus into a motor truck owned and operated by William H. Harloff, in which the plaintiff was a passenger. On notice to the plaintiff the defendant Western New York Motor Lines, Inc., made a motion to bring in William H. Harloff as a joint defendant, claiming that he, and not the defendant named, was liable, or at least, jointly liable. The plaintiff making no objection, the application was granted, and Harloff was made a defendant and served with a supplemental summons and pleading. He thereupon moved to vacate the order bringing him in, which motion was granted. Upon appeal to the Appellate Division the order was reversed.

In view of our decisions regarding the effect of section 211-a of the Civil Practice Act, as above stated, the order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in this court and in the Appellate Division and the question certified answered in the negative.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.


author: Cardozo, Ch. J. Crane, J.

text:
    The People of the State of New York, Respondent, v. Kendall Lytton, Appellant.
    (Argued October 5, 1931;
    decided November 17, 1931.)

      Jacob H. Gilbert, Susan Brandéis, Harry Schulman, Alfred E. Smith, Jr., and Aaron A. Feinberg for appellant.
    That portion of the trial judge’s charge which states that proof of the finding of the body with marks of violence upon it, supplemented by the defendant’s confession of guilt, is sufficient for conviction and other portions of the charge of similar import constitute prejudicial error of so high a character as to require a reversal of the judgment of conviction. (People v. Brasch, 193 N. Y. 46; People v. Roach, 215 N. Y. 592; People v. Deacons, 109 N. Y. 374; People v. Joyce, 233 N. Y. 61; People v. Spohr, 206 N. Y. 516; People v. Huter, 184 N. Y. 237; People v. Marendi, 213 N. Y. 600; People v. Moran, 246 N. Y. 100; People v. Wagner, 245 N. Y. 143; People v. Sobieskoda, 235 N. Y. 411; People v. Stover, 232 N. Y. 264.) That portion of the charge wherein the trial judge stated that if the defendant while engaged in the commission of, or an attempt to commit, a felony discharged a loaded firearm accidentally or unintentionally, the bullet of which penetrated a human being, from the effects of which his fife was destroyed, defendant is guilty of murder in the first degree, is erroneous and constitutes ground for reversal. (People v. Sobieskoda, 235 N. Y. 411; Duncan v. Landis, 106 Fed. Rep. 839; People v. Seiler, 246 N. Y. 262.)

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel), for respondent.
    The confessions were corroborated, as required by section 395 of the Code of Criminal Procedure, and the finding of the body with unmistakable marks of murder upon it is sufficient additional proof to support a confession. (People v. Deacons, 109 N. Y. 374; People v. Brasch, 193 N. Y. 46; People v. Roach, 215 N. Y. 592; People v. Miller, 257 N. Y. 54; People v. Creasy, 236 N. Y. 205; People v. Tavormina, 257 N. Y. 84; Lambert v. People, 9 Cow. 578; Elkin v. People, 28 N. Y. 177; People ex rel. Lawrence v. Brady, 56 N. Y. 182; People v. Wiechers, 179 N. Y. 459.) It was proper for the trial judge not to charge the lesser degrees of homicide. (People v. Schleiman, 197 N. Y. 383; People v. Monat, 200 N. Y. 308; People v. Chapman, 224 N. Y. 463; People v. Van Norman, 231 N. Y. 454; People v. Koerber, 244 N. Y. 147; People v. Wagner, 245 N. Y. 143; People v. Moran, 246 N. Y. 100; People v. Seiler, 246 N. Y. 262; PeopZe v. Martone, 256 N. Y. 395; People v. Hoffman, 219 App. Div. 334; 245 N. Y. 588.) If the homicide occurred during the commission of or attempt to commit a felony, it makes no difference whether it was accidental or otherwise. (People v. Draniewicz, 213 N. Y. 695; People v. Talas, 218 N. Y. 747; People v. Waldenen, 221 N. Y. 521; People v. Mulholland, 221 N. Y. 623; People v. Manriquez, 188 Cal. 602; People v. Udwin, 254 N. Y. 255; People v. Slover, 232 N. Y. 264.)
   Cardozo, Ch. J.

The defendant has been convicted of murder in the first degree, the homicide having been perpetrated, it has been found, while the offender was engaged in the commission of a felony.

An earnest argument has been addressed to us that the verdict of the jury is contrary to the evidence. The identification of the defendant as the assailant and the fugitive, though made by disinterested witnesses, is said to be mere mistake, the product of suggestion or perhaps of officious zeal. The confessions to the police, an important, though not the sole basis for the finding that the assailant, when he shot, was engaged in the commission of a robbery, are repudiated as utter fabrications, concocted by the officers of the law after a futile endeavor to extort genuine confessions by resort to threats and violence. We have examined the record with the patient care exacted by the life that is at stake. Inconsistencies and uncertainties are not lacking altogether. They are not so vital as to condemn the verdict. A question of fact remains, involving an appraisal by a jury of the credibility of witnesses, and incapable of satisfactory solution by the study of the printed page (People v. Rodawald, 177 N. Y. 408, 419, 420; People v. Taylor, 138 N. Y. 398; People v. Egnor, 175 N. Y. 419, 425). There can be no reversal of the judgment without breaking down the barriers that separate the functions of a jury from those of an appellate court ” (People v. Arata, 255 N. Y. 374, 375).

The judgment being upheld as to the facts, we are to consider whether the charge to the jury, unchallenged at the trial by objection or exception, exhibits fundamental error in its statement of the law (People v. Semione, 235 N. Y. 44, 46).

The defendant insists that upon a trial for homicide perpetrated in the commission of another and independent felony (People v. Moran, 246 N. Y. 100; Penal Law, § 1044, subd. 2), a confession is insufficient evidence to sustain a conviction, though there is corroborating evidence of the fact of the homicide, unless there is also corroborating evidence, i. e., evidence apart from the confession, of the independent felony, and that the trial judge erred in charging to the contrary.

The charge is in accordance with the settled doctrine of this court, which deserves to be stated in an opinion, since arguments before us both in this case and in others disclose uncertainty as to the governing principle in the minds of members of the bar.

Code of Criminal Procedure, section 395, provides that a confession of a defendant “ is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.” The crime charged against this defendant is homicide, and the fact that a homicide has been committed is proved, without reference to a confession, by the testimony of eye-witnesses as well as by the discovery of the body, bearing tokens of a fatal wound (People v. Deacons, 109 N. Y. 374; People v. Brasch, 193 N. Y. 46, 58). This being done, the requirement of the Criminal Code must be held to have been satisfied. The danger that a crime may be confessed when no such crime in any degree has been committed by any one is then sufficiently averted (People v. Deacons, supra). The considerations of public policy back of this section of the Code are near akin to those back of a section of the Penal Law to the effect that “ no person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as independent facts; the former by direct proof, and the latter beyond a reasonable doubt” (Penal Law, § 1041; People v. Palmer, 109 N. Y. 110, 114). The corroborating evidence being sufficient to confirm the confession of a homicide, the Code does not require that it shall also confirm the confession of a homicide in any particular degree.

The defendant, indeed, does not contend that there would be need for corroborating evidence of degree if the case had been submitted to the jury under Penal Law, section 1044, subdivision 1, as a homicide committed with a deliberate and premeditated design to kill. The argument is that a different measure of corroboration becomes necessary when the case is submitted under subdivision 2 as a homicide effected without a design to kill by a person engaged in the commission of a felony. The distinction so drawn proceeds upon a false conception of the function of an accompanying felony in a prosecution for the crime of murder. Its function and its significance were clearly expounded by this court, speaking by Hiscock, Ch. J., in People v. Nichols (230 N. Y. 221), a case substantially decisive of the question now before us. Homicide, we said, is not murder “ without evidence of malice and of a felonious intent and a depraved mind ” (People v. Nichols, supra, at p. 226). The malice or the state of mind may be proved by showing that the act was done with a deliberate and premeditated design to kill. The case will then fall under subdivision 1 (§ 1044). It may be proved by showing that the act was done by one then and there engaged in the commission of another felony (People v. Enoch, 13 Wend. 159, 174; People v. Nichols, supra). The case will then fall under subdivision 2. In the one case as in the other a single crime is charged, the independent felony like the deliberate and premeditated intent being established solely for the purpose of characterizing the degree of the crime so charged, the evil mind or purpose inherent in the killing (People v. Enoch, supra). If there could be any doubt about this, the form of the indictment would be sufficient to dispel it. The rule is settled that there is no need to charge in an indictment that the homicide was wrought in the commission of another felony. It suffices to state in the common-law form that the defendant acted willfully, feloniously and with malice aforethought ” (People v. Nichols, supra; People v. Giblin, 115 N. Y. 196, 198; People v. Osmond, 138 N. Y. 80). This would never do if the independent felony were conceived of as changing the identity of the crime instead of merely characterizing the degree of culpability to be imputed to the killer.

The doctrine of People v. Nichols has been applied by this court in later eases, decided without opinion, where the point was made by counsel that a felony ” murder was not sufficiently corroborated unless the corroboration of the homicide extended to the felony. Illustrations are People v. Hirsch (254 N. Y. 570) and People v. Metelski (256 N. Y. 658). We are not unmindful that in People v. Joyce (233 N. Y. 61) a concurring opinion of one of the judges of the court argued for a holding that the corroboration was inadequate if limited to the homicide. The view so expressed did not command the approval of a majority of the judges, and other and later cases, decided without dissent, must be deemed to have rejected it, if rejection at the moment was not sufficiently declared.

The court did not err in charging the jury in effect that the discharge of a pistol by a defendant who is holding it in his hand in furtherance of an attempt to rob, will lay the basis for a verdict of murder in the first degree, though the discharge was not intended, an accident induced by the terror or nervousness or excitement of the robber (Commonwealth v. Lessner, 274 Penn. St. 108; People v. Udwin, 254 N. Y. 255, 261.)

The court did not err in charging that, apart from the confessions, the testimony of the witnesses Dempster, Rawlins and Callan, if credited by the jury, might be found to be sufficient to establish the defendant’s guilt. Dempster heard the exclamation by Lefkowitz, the victim of the crime, He shot me and robbed me,” and saw the defendant run out of the shop, his victim after him. Rawlins looking into the shop saw Lefkowitz with his hands up in the air, and saw the defendant facing him and holding a revolver. Callan testified to identification and pursuit. The defendant, who took the stand, disclaimed any previous acquaintance with Lefkowitz, and surely had no grudge against him that would have supplied a motive for the killing apart from the design to rob. In the setting of the occasion, a robbery or attempted robbery was the only reasonable inference as to the motive for the crime, if the jury credited the testimony of Dempster, Rawlins and Callan, and this whether the confessions were spurious or genuine.

Other rulings have been considered, but no error has been found in them.

The judgment of conviction should be affirmed.

Crane, J.

(concurring). Having expressed my views in People v. Joyce (233 N. Y. 61), I need not repeat them here. The majority has not agreed with me, so that settles it. Personally, I feel that when the charge is murder in the first degree, committed unintentionally while perpetrating another felony, the confession of the felony is not enough — there should be some other evidence that the felony was being committed.

The important proof in a felony murder is the felony, because this makes the act of killing murder in the first degree, even though the defendant did not intend to kill. The form of the indictment cannot obscure the reality. There are no degrees of crime in a felony murder; the felony being proved, it is murder in the first degree, and nothing else. The jury cannot convict of a lesser degree of the crime. The felony, be it larceny or burglary, must be proved beyond a reasonable doubt ■—so the court must charge the jury. Yet under this present rule the felony, be it burglary or larceny, may be established by the defendant’s confession alone, whereas if he were being tried for the minor felony, such as burglary or larceny, he could not be convicted solely on his confession. Such inconsistency does not appeal to me. However, the other view has prevailed and is the law for this State.

Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur with Cardozo, Ch. J.; Crane, J., concurs in memorandum.

Judgment affirmed.


author: Kellogg, J. Pound, J.

text:
    In the Matter of Flora M. Koch, Respondent, et al., as Trustees of Fifth Church of Christ, Scientist, New York. Ralph Wadsworth et al., Appellants.

      (Argued September 28, 1931;
    decided November 17, 1931.)

      Robert McC. Marsh, George H. Porter and Meyer B. Cushner for appellants.
    Defects, if any, in the notice of meeting were waived by petitioner’s appearance and participation without objection. (Beardsley v. Johnson, 121 N. Y. 224; Havens v. King, 221 App. Div. 475; 250 N. Y. 617; People ex rel. Rice v. Board of Trade, 80 Ill. 134; Sale v. First Baptist Church, 62 Iowa, 26; People v. Runkle, 9 Johns. 147; People ex rel. Brewster v. Old Guard, 87 App. Div. 478; People ex rel. Schults v. Love, 199 App. Div. 815; People ex rel. Deverell v. Musical Protec. Union, 118 N. Y. 101; Williamson v. Randolph, 48 Misc. Rep. 96; People ex rel. Baker v. Coachmen’s Union, 4 Misc. Rep. 424; Fritz v. Knaub, 57 Misc. Rep. 405; Pepe v. Missanellese Society, 141 Misc. Rep. 7; Matter of Sperry, 116 Penn. St. 391; Moore v. National Council, 65 Kan. 452.) The Appellate Division erred in holding a two-thirds vote necessary for removal. (Matter of Brearton, 44 Misc. Rep. 247; United States v. Ballin, 144 U. S. 1; Attorney-General v. Shepherd, 62 N. H. 383; Woolcott v. Shubert, 217 N. Y. 212; People v. Palmer, 109 N. Y. 110; Weinburgh v. Union Street Ry. Advertising Co., 55 N. J. Eq. 640; State ex rel. Attorney-General v. Conklin, 34 Wis. 21; Bachmann v. New Yorker Deutcher Arbiter Bund, 64 How. Pr. 442.) The membership of the church had power to remove trustees for cause which was clearly adequate. (Fawcett v. Charles, 13 Wend. 473; Toledo Traction, L. & P. Co. v. Smith, 205 Fed. Rep. 643; 2 Kent’s Commentaries [14th ed.], 297; Barton v. Fitzpatrick, 187 Ala. 273; Angell & Ames on Corporations [10th ed.], 439, 450; 34 Cyc. 1133; 14A Corpus Juris, § 1837; Fells v. Katz, 256 N. Y. 67; People ex rel. Manice v. Powell, 201 N. Y. 194; Matter of Korff, 198 App. Div. 553.)

      Martin Conboy, Frederick Hemley and Joseph Fischer for respondent.
    The trustees elected for a definite term fixed by statute could not be removed from office without cause until the end of their respective terms. (People ex rel. Manice v. Powell, 201 N. Y. 194; Matter of Korff, 198 App. Div. 553; Raub v. Gerken, 127 App. Div. 42; Matter of Automotive Mfrs. Assn., Inc., 120 Misc. Rep. 405.) No cause was shown for the removal of the trustees from their offices. (People ex rel. Manice v. Powell, 201 N. Y. 194; Manson v. Curtis, 223 N. Y. 313; Matter of Korff, 198 App. Div. 553, 3 Fletcher Cyclopedia of Corporations, 3074; People ex rel. Floyd v. Conklin, 7 Him, 188.) Since the notice of the corporate meeting did not specify that charges against the trustees were to be heard, the meeting was without jurisdiction to hear such charges. (People ex rel. Holmstrom v. I. D. B. B. Union, 164 App. Div. 267; Matter of Bandanza, 132 Misc. Rep. 817; People ex rel. Meads v. McDonough, 8 App. Div. 591; People ex rel. Meads v. Alpha Lodge,
      8 App. Div. 591; People ex rel. Stephens v. Greenwood Lake Assn., 63 Hun, 633; Goller v. Stubenhaus, 77 Misc. Rep. 29.)
   Kellogg, J.

The petitioners were trustees of Fifth Church of Christ, Scientist, a religious corporation. Before their terms of office had expired, the members of the corporation, at a regular corporate meeting, passed a resolution purporting to remove the petitioners from office for a cause stated. The three individual appellants were thereupon appointed, by the remaining members of the board of trustees, to fill the vacancies thus created. Thereafter these proceedings for reinstatement were instituted by the petitioners. The Appellate Division has found that the resolution adopted by the members was not effectual to accomplish their removal, for the reasons: (1) No power had been conferred by statute upon the corporation to remove its trustees before the expiration of their terms; (2) the notice, calling the meeting, did not advise members that the removal of the petitioners for cause would be considered; (3) the resolution was not adopted by a two-thirds vote.

Frequently the authorities neglect properly to distinguish between amotion, the power to remove a corporate officer, and disenfranchisement, the power to expel from membership. (2 Kent’s Commentaries, 298; Niblack on Mutual Benefit Societies, § 34.) The power of amotion or disenfranchisement of a member for a reasonable cause, is a power necessarily incident to every corporation.” (2 Kent, 297.) This has been the rule ever since the decision in Lord Bruce’s Case (2 Strange, 819). In that case, decided in the year 1728, the King’s Bench stated: Besides, the modern opinion has been, that a power of amotion is incident to the corporation, though Bagg’s case seems contrary. II Co. 93.” In Rex v. Richardson (1 Burr. 517) Lord Mansfield, writing for the same court, and referring to the holding in Lord Bruce’s case, said: “ We all think this modern opinion is right. It is necessary to the good order and government of corporate bodies, that there should be such a power ” (p. 539). In Fawcett v. Charles (13 Wend. 473) the court, through Nelson, J., said: “ Since the decision of the case of The King v. Richardson, 1 Burr. 517, 541, it has been considered settled law, that a corporation aggregate has the power, as incidental to its constitution, of removing an officer or disfranchising a corporator, for reasonable cause.” Present day opinion still voices this modern ” doctrine. (Toledo Traction, Light & Power Co. v. Smith, 205 Fed. Rep. 643, 646; Barton v. Fitzpatrick, 187 Ala. 273; State ex rel. Danforth v. Kuehn, 34 Wis. 229; Fells v. Katz, 256 N. Y. 67; Polin v. Kaplan, 257 N. Y. 277; Angell & Ames on Private Corporations [10th ed.], pp. 439, 450; 3 Fletcher, Cyclopedia of Corporations, § 1816; 2 Thompson on Corporations, § 1186; 2 McQuillan, Municipal Corporations, § 552; Niblack, § 35.)

It is the general rule that, before an officer may be amoved, specific charges must be served, adequate notice must be given, and full opportunity of meeting the accusations must be afforded. (Niblack, § 35; Fisher v. Keane, L. R., 11 Ch. Div. 353.) There is authority for the proposition that these requirements may not be waived. Thus in Downing v. St. Columba’s Society (10 Daly, 262, 264) this was stated to be the law: It has been decided that though a member attends, and enters upon his defense, he does not waive his right to a notice of the charges. Fair dealing requires that notice shall be given, and that the charges shall be clearly stated (Marsh v. Huron College, 27 Grant, U. C., Ch. 605, 628; Labouchere v. Wharncliffe, L. R., 13 Ch. D. 346; Fisher v. Keane, L. R., 11 Ch. D. 353).” Only the first of the cases thus cited supports the proposition asserted. In Labouchere v. Wharncliffe the question was whether Mr. H. Lábouchere had properly been expelled from the Beefsteak Club of London. It was held that he had not been, for the reason that the resolution of expulsion had not been carried by a two-thirds majority, as required by the rules. In Fisher v. Keane, a case also dealing with the expulsion of a club member, it appeared that the member had neither received a notice of meeting for his expulsion or been present thereat. The prevailing opinion seems quite the contrary of that expressed in Downing v. St. Columba’s Society (supra). Thus we find that in Reg. v. The Bailiffs (2 Raym. 1232) the removal of an officer was contested on the ground that the notice served upon him did not specify the time when the charges would be heard or correctly describe the charges for which he would be tried; that “ to these objections it was answered, and resolved, that the serjeant appearing, and being charged, and answering, supplied the want of notice, both of the time, and of the offense; that in Commonwealth v. Pennsylvania Beneficial Institute (2 Serg. & Rawle [Penn.], 141), while it was held that no man might be expelled from a society “in his absence without notice,” nevertheless that “if he is present when the subject is taken up, and willing to enter into the inquiry immediately, there is no occasion for further notice; that in the case of Pitcher v. Board of Trade (121 Ill. 412, 421), which dealt with the expulsion of a member from the Chicago Board of Trade, it was held that all irregularities were waived by his appearance before the board of directors and the submission of his case for trial before them “ without objection either to the manner in which that body was constituted, or to the mode of its proceeding.” Learned text-writers have entertaned the opinion “ that a man may waive anything which the law has intended for his benefit, is a general proposition which cannot be denied; and as previous notice of an offense charged against a party, is given him only that he may come prepared to defend himself, he may, no doubt, dispense with it.” (Kyd on Corporations, vol. 1, p. 447.) “ But if he, without qualification, submits himself to the jurisdiction of the society, he undoubtedly waives his right to notice.” (Niblack, § 68.) In People ex rel. Brewster v. “ Old Guard ” (87 App. Div. 478, 485; 178 N. Y. 576) the relator, who had been expelled from membership in a club, complained that the tribunal which expelled him was composed in part of members who were prejudiced against him and had prejudged his case. The court said: In the case at bar the relator submitted to the jurisdiction, accepted the court as constituted, allowed the investigation to proceed and participated in it to the very end. He could waive his objection to jurisdiction if there were any (People ex rel. Deverell v. Musical Mid. Protec. Union, 118 N. Y. 107) and he did so.”

In our case, the notice of the meeting at which the resolution was subsequently adopted was a call to a regular stated meeting of the corporate body, not to a special meeting, so that the statutory requirement, that for the call of a special meeting there must be a notice “ specifying the business to be transacted thereat ” (Religious Corporations Law; Cons. Laws, ch. 51, § 188), does not apply. However, the call sent out was accompanied by a paper entitled “ Agenda for corporate meeting Oct. 13, 1930,” which, among other things, specified, as matters to be taken up, Reports; Board of Trustees.” At a meeting of the board of trustees, held on October 10th, a report had been adopted for presentation to the corporate body in order that they may take action,” detailing the acts of misconduct for which the petitioners were subsequently amoved. The petitioners were present at the board meeting and heard the report read. They must, therefore, have been advised, through the notice and Agenda ” served, that at the meeting called for October 13th their acts of alleged misconduct would be considered, and that action might be taken. However this may be, the fact is that the petitioners attended the meeting and heard the report read. They made no objection that proper notice had not been served; that written charges had not been filed or served; that opportunity had not been given to prepare a defense; that there was present only a partial membership to try the charges. They did not deny that the facts related in the report or the amoving resolution were true; they did not complain that no witnesses had been called to establish the charges, or demand permission to call witnesses to refute them. On the contrary, without objection to the immediate consideration of the subject of their removal or to the informality of the proceedings, they entered into the debate, and discussed the subject of their removal, entirely upon the merits, at great length. Having so acted, it is our opinion that they could not thereafter, in a court of law, justly be heard to complain that their case was not properly called for trial, or that the corporate body which heard it was without power to render decision.

The Religious Corporations Law, section 189, provides that at every corporate meeting " the action of the meeting upon any matter or question shall be decided by a majority of the qualified voters voting thereon * * * except that by-laws can be adopted or amended only by a two-thirds vote, as hereinbefore provided by this chapter.” Even if the by-laws of this corporation otherwise provided, a majority vote, under the express terms of the statute, would have been effective to carry a resolution of removal. However, the by-laws did not provide to the contrary. Article XIV, section 10, reads as follows: “ Unless otherwise provided in these by-laws, a majority vote of qualified voters present and voting shall be sufficient for an election or to carry a motion.” It is true that section 5 of the same article states that Robert’s Rules of Order shall govern at all corporate meetings where they do not conflict with these by-laws.” In so far as Robert’s Rules do provide that a removal from office must be by a two-thirds vote, they are in conflict with the by-laws as well as the statute. The resolution was carried by a majority vote, and that was sufficient.

There is a great dearth of authority upon the subject of adequate cause for amotion. Text-writers and judges alike have seemed content, in stating the general principle, merely to echo the words of Lord Mansfield in Rex v. Richardson (supra). (2 Kent, 298; Kyd on Corporations, vol. 2, p. 62; Niblack, § 35; Fawcett v. Charles, supra; People v. Medical Society, 32 N. Y. 187.) So far as pertinent, Lord Mansfield’s specification of offenses which are sufficient to justify the amoval of an officer, set forth in Rex v. Richardson, is as follows: “ Such as are only against his oath, and the duty of his office as a corporator; and amount to breaches of the tacit condition annexed to his franchise or office ” (p. 538). This was repeated, almost word for word, by Nelson, J., in Fawcett v. Charles (supra), who says one cause may be this: “ Where it relates merely to his official or corporate character, and amounts to breaches of the condition, tacitly or expressly annexed to his franchise or office” (p. 476). May we say that the corporators in our case, exercising a latitude of judgment permitted them, were entitled to declare that each of these petitioners had so violated “ the duty of his office ” and committed such “ breaches of the tacit condition annexed to his office,” that because of such derelictions his amoval must follow?

The board of trustees of the Fifth Church of Christ, Scientist, consists of nine members. One of the duties enjoined upon them by the by-laws- is this: “To take action on applications for membership as submitted according to the provisions of these by-laws at its regular meeting in February, May, August and November.” The by-laws likewise provide: “Applications for membership which have been received by the Board of Trustees according to the provisions of these by-laws shall not remain in the hands of the Board for more than two months before consideration thereof.” They also provide that the board of trustees shall manage the affairs of the church “ subject, however, to the right of the church membership to give instructions in all matters at any corporate meeting duly called.” They provide further that no applicant shall be admitted to membership except with the concurrence of the nine members of the board.

Long prior to the regular May meeting of the board twenty applications for admission to membership, duly drawn and executed, had been filed and submitted to the board. At that meeting these applications were brought to the attention of the board members, including the three petitioners, in order that action might be taken. A vote was taken upon the question of their acceptance. Six trustees voted to grant the applications; the petitioners declined to cast their votes, either for denial or acceptance. At a corporate meeting, later held in the same month, it was voted to be " the sense of the corporate body that these applicants for membership be definitely acted upon in August.” Then came the August meeting of the board; again a vote was had upon the applications; again six trustees voted to grant them; once again the three petitioners declined to cast their votes, either against or in favor of the applications. These were the acts of misconduct which were reported by the board of trustees to the corporate members at the regular meeting held on October 13th, in order that they may take action.” These were the acts of the three petitioners which prompted the resolution for their amoval, adopted at that meeting. The resolution in terms demanded that they be removed because they failed to vote on twenty applications for admission to the church, thus deliberately disobeying the by-laws of Fifth Church and the request of the corporate body expressed in a motion passed without a dissenting vote at the meeting of May 21st, 1930.” The petitioners, on the presentation of the resolution, did not deny that they committed the acts charged. Debating the resolution upon the merits, they offered elaborate explanations of their failure to vote upon the applications. Their explanations might have seemed sufficient to the corporate members; having been deemed insufficient by that body, we may not determine that they were sufficient. As the case stands before us, it must be viewed as if the petitioners, without valid excuse, recalcitrantly declined to exercise their trust powers and perform their trust obligations. Inexcusably, contumaciously, they declined to take action on applications for membership ” at the May or August meetings, as prescribed by the bylaws; willfully they ignored the rule that applications for membership “ shall not remain in the hands of the Board for more than two months before consideration thereof; ” defiantly they refused to follow the instructions of the corporate body to act upon the admissions, although it was their bounden duty to conduct the corporate affairs subject “ to the right of the church membership to give instructions in all matters at any corporate meeting duly called.” We think that the corporate body was justified in finding that each petitioner violated the duty of his office ” and committed breaches of the condition tacitly annexed ” thereto, and that the power of amotion was open for exercise, and has been properly exercised by the corporate members.

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

Pound, J.

(dissenting). The three trustees could be removed only for cause after notice and a hearing. They were removed summarily after a debate on a resolution which was not a trial on charges after notice. They did not waive their rights by opposing the adoption of the resolution. Such irregularities are subversive of the regular procedure in accordance with which a religious organization should operate and should not be tolerated.

Cardozo, Ch. J., Crane, O’Brien and Hubbs, JJ., concur with Kellogg, J.; Pound, J., dissents in memorandum in which Lehman, J., concurs.


author: O’Brien, J.

text:
    In the Matter of the Application of Fanny E. Krooks, Appellant. William W. Conrad, Respondent.
    (Submitted September 28, 1931;
    decided November 17, 1931.)

      Maurice Janklow and Louis A. Rosenstein for appellant.
    The relation of attorney and client may be terminated at the will of the client, with or without cause, and the client thereupon becomes hable for the reasonable value of the attorney’s services, up to the time of the termination of the relation. (Martin v. Camp, 161 App. Div. 610; 219 N. Y. 170; Matter of City of New York, 174 App. Div. 853; 219 N. Y. 192; Matter of Driscoll, 131 Misc. Rep. 613; Andrewes v. Haas, 214 N. Y. 255; Matter of Dunn, 205 N. Y. 328; Matter of Robbins, 189 N. Y. 422; Tenney v. Berger, 93 N. Y. 524; Bathgate v. Haskins, 59 N. Y. 535; Gustine v. Stoddard, 23 Hun, 99; Johnson v. Ravitch, 113 App. Div. 810; A. C. C. Works v. Dillon, 111 App. Div. 418.) The appellant terminated the relation of attorney and client prior to complete performance by the respondent. (Corcoran v. Kellogg Structural Co., 175 App. Div. 396; Matter of Levy, 214 N. Y. 168; Matter of Reisfeld, 187 App. Div. 223; 227 N. Y. 137.)

      Samuel Bubin and William W. Conrad for respondent.
    The agreement between appellant and respondent having been fairly entered into is valid and enforceable. (Rodkinson v. Haecker, 248 N. Y. 480; Morehouse v. Brooklyn Heights R. R. Co., 123 App. Div. 680; Matter of Liebergall, 189 App. Div. 681; Matter of Fitzsimmons, 174 N. Y. 15; Weeks v. Gattell, 125 App. Div. 402; 193 N. Y. 681; Matter of Flannery, 150 App. Div. 369; 212 N. Y. 610; Matter of Edgecombe Road, 128 App. Div. 432; Bermant v. Keveney, 88 Misc. Rep. 527; 170 App. Div. 898; Burke v. Baker, 111 App. Div. 422; Ferris v. Lawrence, 138 App. Div. 541; Wendel v. Binninger, 132 App. Div. 786.) The right of appellant to discharge the respondent, at any time, with or without cause, does not affect her obligation to pay in accordance with the agreement, where the services to be rendered thereunder were substantially performed. (Martin v. Camp, 219 N. Y. 170.)
   O’Brien, J.

Fanny E. Krooks owned real estate assessed at $25,000, title to which the city of New York acquired by condemnation. By written contract, she retained William W. Conrad as her attorney to take such proceedings as might be necessary in connection with the collection of any award or the payment of any compensation resulting from the condemnation,” and by that contract she agreed to pay him all moneys in excess of $38,000 which may be paid to me or my assigns as a result of said proceedings.” On this record a finding could properly be made that Mr. Conrad faithfully performed services as her attorney and that he acted with such energy and skill that the justice at Special Term before whom the condemnation proceeding was conducted stated in a memorandum that the sum of $46,500 was awarded by him for the Krooks property. Two days after the publication of that memorandum Mrs. Krooks canceled her retainer and on the following day instituted this proceeding to set aside the written agreement and to determine the attorney’s hen. The application in so far as it sought to set aside the agreement was denied. Without taking evidence in relation to the value of the attorney’s services, the hen was fixed at the amount set forth in said agreement of retainer of October 22, 1929, to wit, the sum over and above $38,000, which may be paid to the said Fanny E. Krooks, or her assigns, as a result of said condemnation proceedings.”

A chent may at any time for any reason which seems satisfactory to him, however arbitrary, discharge his attorney. (Tenney v. Berger, 93 N. Y. 524, 529; Matter of Dunn, 205 N. Y. 398, 402; Matter of Paschal, 77 U. S. 483, 496.) Even in the presence of a definite agreement the Ghent’s right persists. Cancellation by him cannot constitute a breach of contract, for implied in every such agreement is the right to discharge. (Martin v. Camp, 219 N. Y. 170; Johnson v. Ravitch, 113 App. Div. 810, 812.) The. decisions in this State rest upon the familiar principle that the peculiar relationship of trust and confidence which ought to exist between attorney and chent injects into the contract special and unique features. Whatever may be the law in other jurisdictions, it is clearly settled in New York. (Martin v. Camp, supra.) Assuming that the rule were to be narrowed to the extent of allowing cancellation only in those instances where the attorney's services had not been substantially completed (Matter of City of New York, 219 N. Y. 192, 194), it would now in this case require application. Before services- by the attorney under the agreement could be held to be fully performed, at least an award to the client must have become final and determinate. Whether the justice at Special Term ever signed even a tentative decree or, if he did issue such a mandate, whether it was followed by a final decree, does not appear from the record. In the event that a final decree was entered, the record is silent whether the city took an appeal. All we can know from the record is that, by memorandum, the Special Term indicated an intention to enter an order fixing the value of appellant’s real estate at the sum of $46,500. The attorney’s compensation under the written agreement was contingent upon collection of an award in excess of $38,000, and concededly at the time of the cancellation of the retainer and the institution of this proceeding no such award had been collected. Not even had such a final award been made. It may never be collected. Under all the authorities, therefore, respondent’s services are not shown to have been so nearly completed as to preclude the client from the discharge of her attorney and the retainer of a different one.

The client’s right to control her retainer does not permit her to cheat her attorney. (Matter of Levy, 249 N. Y. 168, 170.) If the attorney shall be paid the reasonable value of his services, no cheating will occur. The contract has been canceled and its terms cannot establish the standard for compensation. Indeed, the agreement of retainer may prove to the attorney an extremely unjust guide for ascertaining his worth. If a final award has been made, if an appeal has been taken and if such an award has been or shall be substantially reduced, the compensation for which the agreement provides might result in.a grossly inadequate sum. A reduction in the award to an amount slightly in excess of $38,000 would leave the attorney’s services with paltry recognition. A reduction to a sum below that stipulated amount would give him nothing in return for industry, skill, studious research, long days in court and fidelity to his client’s interests. Quantum meruit is the rule to apply. (Matter of City of New York, 219 N. Y. 192.)

The order of the Appellate Division and that of the Special Term should tie reversed, without costs to either party, and the matter remitted to the Special Term with directions to take testimony in relation to the value of the attorney’s services and to fix the lien therefor.

Cardozo, Ch. J., Pound, Lehman, Kellogg and Hubbs, JJ., concur; Crane, J., dissents upon the ground that there was substantial compliance with the contract.

Ordered accordingly.


text:
    Joshua Parker, Respondent, v. Olga I. Hoppe, Appellant.

      (Argued October 5, 1931;
    decided November 17, 1931.)

      Vermont Hatch and Thomas Kiernan for appellant.
    The conversion of the foreign consideration paid at a rate of exchange existing upon the day of payment is erroneous, even though the rate of exchange used be assumed to be correct. (Richard v. Credit Suisse, 242 N. Y. 346; Kupfer Bros. Co. v. Chemical Nat. Bank, 126 Misc. Rep. 13; 216 App. Div. 796; Guinness v. Guaranty Trust Co., 124 Misc. Rep. 578; 216 App. Div. 746; Schochet v. Public Nat. Bank, 220 App. Div. 201; Bank of United States v. National City Bank, 123 Misc. Rep. 801; Cantarie San Rocco S. A. v. Clyde Shipbuilding & E. Co., Ltd., [1924] A. C. 226; Woodward on Quasi Contracts, §§ 260-267; 3 Williston on Contracts, §§ 1454, 1455; Keener on Quasi Contracts, 306; Richard v. Ameri

      can Union Bank, 241 N. Y. 163; Hoppe v. Russo Asiatic Bank, 235 N. Y. 37; Kantor v. Aristo Hosiery Co., 222 App. Div. 502; 248 N. Y. 630; Zimmermann v. Sutherland, 274 U. S. 253; Deutsche Bank v. Humphrey, 272 U. S. 517; Pektus v. Lietuvos Ukio Bankas, 123 Misc. Rep. 193; Cosmopolitan Trust Co. v. Ciarla, 239 Mass. 32; American Union Bank v. Gubelman, 212 App. Div. 488; Safian v. Irving Nat. Bank, 202 App. Div. 459; 236 N. Y. 513; Pfotenhauer v. Equitable Trust Co., 115 Misc. Rep. 396; 201 App. Div. 864.)

      Harris Jay Griston for respondent.
    The plaintiff is entitled to a judgment for the value of 100,000 rubles in United States money as of the day of payment to the defendant. (Richard v. Credit Suisse, 242 N. Y. 346; Safian v. Irving Nat. Bank, 202 App. Div. 459; 236 N. Y. 513; Sokoloff v. National City Bank, 130 Misc. Rep. 66; 250 N. Y. 69.) In an action by way of restitution, recovery is as of the day of original payment and not as of the breach day. (Legniti v. Mechanics & Metals Nat. Bank, 230 N. Y. 415; Richard v. Credit Suisse, 242 N. Y. 346; Bank of United States v. National City Bank, 123 Misc. Rep. 801; 214 App. Div. 716; Richard v. American Union Bank, 241 N. Y. 163; Sokoloff v. National City Bank, 239 N. Y. 171.) The right to prosecute the action itself arises on either the breach day or the day of rescission, but the measure of recovery in the action is as of the original day of payment, and not as of the breach day. (Schochet v. Public Nat. Bank, 127 Misc. Rep. 447; 220 App. Div. 201; Bank of United States v. National City Bank, 123 Misc. Rep. 801; 214 App. Div. 716.) Plaintiff is entitled to recover interest on the amount recovered from the date the defendant received the money. (Richard v. Credit Suisse, 242 N. Y. 346; Richard v. American Union Bank, 222 App. Div. 115; Pfotenhauer v. Equitable Trust Co., 115 Misc. Rep. 396; 201 App. Div. 846; Safian v. Irving Nat. Bank, 202 App. Div. 459; 236 N. Y. 513; Kupfer Bros. Co. v. Chemical Nat. Bank, 126 Misc. Rep. 13; 216 App. Div. 796.)

      Walter II. Poliak and Ruth I. Wilson for G. Frank Dougherty et al., amici curiae.

    In an action for money had and received to recover a payment made upon a consideration that has totally failed, the plaintiff is entitled to the money paid with interest from the time of payment. (Richard v. Credit Suisse, 242 N. Y. 355; Weaver v. Bentley, 1 Caines, 47; Sokoloff v. National City Bank, 239 N. Y. 171; Nash v. Towne, 5 Wall. 689; Ballou v. Billings, 136 Mass. 307; Van Werden v. Assur. Soc., 99 Iowa, 621; Sokoloff v. National City Bank, 239 N. Y. 171; Bulkley v. Rouken Glen, Inc., 222 App. Div. 570; 248 N. Y. 647; Winters v. Elliott, 69 Tenn. 676; Fort Wayne Electric Co. v. Miller, 131 Ind. 499; Graham v. Estate of Chandler, 38 Vt. 559; Trinkle v. Reeves, 25 Ill. 197; Reid v. Reid, 141 Ky. 402; Ark-MoZinc Co. v. Patterson, 79 Ark. 506; Alamo Automobile Co. v. Schmidt, 211 S. W. Rep. 804; Sorensen v. Larue, 47 Idaho, 772; Marsh v. Lorimer, 164 La. 175.)

      John W. Davis, Frank L. Polk, Allen Wardwell, George H. Gardiner and Lansing P. Reed for Davis, Polk, Ward-well, Gardiner & Reed, amici curiae.

    In an action for money had and received based on a rescission for defendant’s breach or non-performance of the contract, an amount recoverable in foreign money is to be converted into dollars at the rate of exchange on the date of breach or non-performance, and not on the date of payment. (Safian v. Irving Nat. Bank, 236 N. Y. 513; Petkus v. Lietuvas Ukio Bankas, 123 Misc. Rep. 193; Fliker v. State Bank, 94 Misc. Rep. 609; Plischner v. Taylor, 193 N. Y. Supp. 236; Bank of United States v. National City Bank, 123 Misc. Rep. 801; Richard v. Credit Suisse, 124 Misc. Rep. 3; 214 App. Div. 705; 242 N. Y. 346; Schochet v. Public Nat. Bank, 220 App. Div. 201.) An amount recoverable in foreign money is to be converted into dollars as of the date of the accrual of the cause of action. (Sokoloff v. National City Bank, 250 N. Y. 69; Deutsche Bank v. Humphrey, 272 U. S. 517; Hoppe v. Russo-Asiatic Bank, 235 N. Y. 37.) A cause of action for money had and received on a rescission for defendant’s breach or non-performance accrues on the date of breach or non-performance. (Bank of United States v. National City Bank, 123 Misc. Rep. 801; 214 App. Div. 716; Kupfer Bros. Co. v. Chemical Nat. Bank, 126 Misc. Rep. 13; 216 App. Div. 796; Schochet v. Public Nat. Bank, 220 App. Div. 201; Bykowsky v. Public Nat. Bank, 209 App. Div. 61; 240 N. Y. 555; Wakulaw v. State Bank, 214 App. Div. 673; Ahrens v. Guaranty Trust Co., 125 Misc. Rep. 443; Huminsky v. Gary Nat. Bank, 107 W. Va. 658.) Interest on the amount recovered begins to run on the date of the breach or repudiation, and not on the date of payment. (Harkavy v. Ginzburg, 170 N. Y. Supp. 927; Warren v. Banning, 67 Hun, 649; American District Telegraph Co. v. City of New York, 213 App. Div. 578; 243 N. Y. 565; Lessenich v. Sellers, 119 Iowa, 314; Stern v. Barrett, 202 App. Div. 830; 235 N. Y. 613; Dermer v. Barrett, 202 App. Div. 828; 235 N. Y. 588; Schochet v. Public Nat. Bank, 220 App. Div. 201; Bykowsky v. Public Nat. Bank, 209 App. Div. 61; 240 N. Y. 555; Bratspies v. Barrett, 122 Misc. Rep. 684.)
   Crane, J.

On August 10, 1917, plaintiff’s assignor, Kamendrovsky, entered into a written contract with the defendant for the purchase of 5,000 poods (approximately eighty-five tons) of Scotch paraffin wax at the price of 24 rubles per pood, c. i. f. Archangel, or 120,000 rubles for the entire purchase. The wax had been purchased by the defendant abroad and was expected at Archangel during the navigation season. Due to climatic conditions as well as international arrangements the contract contained this clause: “A delay in the delivery of the mercb.an.dise cannot serve as a basis for a refusal on your part to accept same.” The terms of the contract were these: “ In payment of this contract you have to pay us now the amount of Rub. 100,000 — and the balance immediately upon delivery of the merchandise at Archangel. Delivery upon arrival at Archangel depending on conditions of shipment as stated above, excepting unavoidable obstacles.” The contract was made in Moscow, Russia, and on August 11, 1917, the defendant was paid at Moscow the 100,000 rubles called for by the agreement. The paraffin wax was not shipped from England, where it was, during the next open season for navigation and was kept in England by the defendant until she sold it in April of 1918, just prior to the shipping season for that year, which opened in May. The wax was never delivered or tendered to Kamendrovsky, the defendant completely failing to perform her contract. She kept, however, the 100,000 rubles, and this action has been brought in New York to recover the same, or their value in our currency. Kamendrovsky has taken the position that he rescinded this contract for non-performance on March 17, 1921, by a letter in which he stated to the defendant: “ I purchased of you in Moscow 5000 poods of paraffin, which I have not received and which has been left in London, and the cost of which has been covered by me personally to the extent of 100 thousand rubles and the balance of the sum, which I do not know, has been paid for my account by Mr. Dobkin. I am desirous of having this account also settled in cash money. I do hope that you will not refuse to grant my request, and I thank you in anticipation.”

The rate of exchange on the day of payment to the defendant, August 11, 1917, has been fixed by agreement or consent of the parties at 4.41 rubles to the United States dollar, or 22.676 cents to the ruble. On this basis the 100,000 rubles were valued in our currency at $22,676, for which sum, with interest from the date of payment, the Appellate Division has awarded summary judgment to the plaintiff. The defendant-appellant admits the breach or failure to perform, but disputes the amount of damages awarded, claiming that the date for figuring the rate of exchange or the amount of damages should be taken as of the day of the breach and not as of the day of payment.

This is a Russian contract, made at Moscow, where the purchase price was paid. The goods were to be delivered in Russia. What were Kamendrovsky’s damages or his rights on breach or failure of performance? He could have sued for damages or to recover the purchase price. He has sought the latter remedy, and if this action had been brought in Russia he would have received, no doubt, his 100,000 rubles, but he would have received them as the currency of the country and its medium of exchange. His judgment would have been for the 100,000 rubles with interest from the date of payment, figured as rubles, because this would be the money of the realm which he had paid to the defendant. The ruble would be taken as money and not valued as a commodity. No attention would be given to the purchasing value of the ruble or its drop in value on the foreign exchanges.

When one sues here to recover $100,000 paid a year or more ago as the purchase price on an unfulfilled contract, he is given by the courts the $100,000, with interest from the date of payment, without any consideration to the purchasing value of the dollar. The dollar is taken as money and not as a commodity. We would not expect that an action brought in a foreign country upon such a contract would give a profit to the plaintiff by exchange fluctuations. The money value of the judgment obtained in the foreign country should and would equal the value here of the dollar as of the time the plaintiff was entitled to it.

This is the rule to be applied to this case. The plaintiff sues here to recover the value of the rubles which would have been given to him by a court in Russia, provided those courts were functioning properly and in accordance with law. However, in order to ascertain the value of the 100,000 rubles returned to him in dollars, it is necessary to figure a rate of exchange which fluctuates with time, and it is reasonable and just to take the time as of the date when Kamendrovsky was entitled to receive them. Ordinarily this would be the date of the breach of the contract or the date of the demand. We do not need to determine on this application for summary judgment whether it should be the one of these or the other (i. e., the date of breach or the date of the declaration of an election to rescind), for there is no evidence that there was any substantial difference between the two. The plaintiff makes no point that such a difference exists, but contends for a different date altogether, the date, that is to say, when the rubles were paid in Russia in accordance with the contract. That contention we reject, holding that the date of payment is not the one to be applied.

In Sokoloff v. National City Bank (250 N. Y. 69, p. 81) this court said: “ The contract was broken, as of September 1, 1918, when the Petrograd Branch ceased to fmiction. On that date, he was entitled to 120,000 rubles in Petrograd. He wanted them and did not get them. His damages are to be measured according to the value of rubles as of that date in Petrograd measured in dollars in New York city, where he has sought his remedy.” (See, also, Richard v. American Union Bank, 241 N. Y. 163; Richard v. Credit Suisse, 242 N. Y. 346.)

The respondent thinks that we have decided differently in Richard v. Credit Suisse (supra), especially in our treatment of the third cause of action in that case. Whether or not there had been a breach of the contracts was the main point involved in that case fully discussed in the opinion by the chief judge. The time at which the rate of exchange should be taken was not involved nor touched upon or discussed upon the briefs of counsel, as a ready reference to the appeal book will show. The amount to be paid back was there determined by agreement of the parties and taken by this court at the rate fixed by them as well as determined by the peculiar wording of the agreement sued upon. Where dollars have been paid here to establish a credit abroad or to make payment abroad and the transaction has fallen through, the plaintiff has been allowed to recover, in actions brought here, the dollars paid. (Safian v. Irving Nat. Bank, 236 N. Y. 513.) No question of conversion of foreign money or the value of foreign money was involved in such instances, and cases like the Safian case are not authorities upon the proposition here presented.

As heretofore stated, the damages upon breach of contract are to be measured as of the day of the breach, as a general rule. (Hoppe v. Russo-Asiatic Bank, 235 N. Y. 37.) And this also applies to that form of action termed a rescission,” which is really one for money had and received when the defendant completely fails to perform. In this latter instance the date would generally be the time when the plaintiff would be entitled to the return of his money, and this, ordinarily, would be the time when the defendant breached his contract and failed to perform or else the time when there was notice of an election to rescind unless circumstances indicated an extension or some other date. (Richard v. Credit Suisse, 242 N. Y. 346, p. 351; 3 Williston on Contracts, § 1469; Woodward on Quasi-Contracts, § 267; and Keener on Quasi-Contracts, p. 309.)

We do not mean to say that the Statute of Limitations would begin to run from the time of notice of rescission rather than from the time of the breach even if we were to hold that the time of notice would determine the value of the rubles. Williston, in section 1455 of his Contracts (Vol. 3), says: “ The right of rescission and restitution generally exists as an alternative remedy where there has been repudiation or a material breach of a contract.” And Woodward, by section 260 says: “ This right to restitution would seem to be in reality nothing more than an alternative remedial right arising from the violation of the contract.” And at section 267: “ The right arises upon the repudiation or breach, and is barred by the statute of limitations at the same time as is the right to compensation in damages.” (Schochet v. Public Nat. Bank, 220 App. Div. 201; Bank of United States v. National City Bank, 123 Misc. Rep. 801; affd., 214 App. Div. 716.) The plaintiff cannot extend the time within which an action may be brought by postponing bis choice of alternative remedies. This does not involve the conclusion that he may not by such postponement affect the time at which bis recovery will be converted into foreign money. The plaintiff is at least entitled to the return of his money if he wants it at the time of the breach.

But while this is true, it is not always easy to determine the date of the breach. In this case, which is a motion for summary judgment on pleadings and affidavits, there may be uncertainty as to the time when the plaintiff’s assignor was entitled to the return of his money. As heretofore quoted, the contract provided that a delay in the delivery of the merchandise cannot serve as a basis for a refusal to accept, and it appears from the affidavits that deliveries could only be made during the open season, which occurred after the first of May. The first season of 1917 apparently was considered by all parties as too late for delivery, and by May of 1918 the wax had been disposed of. Yet possibly the defendant might have made deliveries by procuring other wax before the closing, of the season in October or November of 1918. Under these circumstances the plaintiff’s assignor would not have been entitled to the return of his money until the lapse of a reasonable time for the time of performance of the contract or possibly the time of his first demand ■ and repudiation of the contract. Neither party, we take it, by these affidavits, or upon this appeal, has attempted to fix what we may call the day of the breach. Sufficient for us at this time to decide the questions which have been argued and hold that the date of payment fixed by the courts below is not the time to be taken for determining the* rate of exchange.

As to the interest, we think it should be computed from the time of payment, the principal on which the interest is to accrue to be valued as of the date of breach or of notice of rescission. We do not know whether the rate of interest under Russian law differs from our own. The question does not have to be determined at this time which rate should be applied if the two are different. (Restatement of Conflict of Laws, American Law Inst., §§ 456-458.) We leave that question for the trial.

The case at hand in which the plaintiff paid rubles in the first instance, the transaction taking place in Russia, is to be distinguished from cases where a plaintiff has paid dollars with directions to invest them in rubles. In such cases the recovery will be for the dollars expended, and not merely for the value of the rubles, if the action is one in which the plaintiff is entitled to disaffirm the transaction and recover the payment made.

For the reasons here stated the judgment of the Appellate Division should be reversed, the order of the Special Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


author: Hubbs, J.

text:
    Hazen A. Gochee, Respondent, v. John A. Wagner, Appellant.
    (Argued October 6, 1931;
    decided November 17, 1931.)

      George R. Fear on, Henry R. Follett and Edward A. Wolff for appellant.
    The negligence of the driver of respondent’s car was imputable to him and is a bar to his recovery in this action. (Swartout v. Van Auken, 132 Misc. Rep. 89; 227 App. Div. 644; Shuler v. Whitmore, 246 N. Y. Supp. 528; Psota v. Long Island R. R. Co., 246 N. Y. 388; Secured Finance Co. v. C., R. I. & P. R. R. Co., 207 Iowa, 1105.) Irrespective of section 59 of the Vehicle and Traffic Law, the respondent cannot recover because the common-law relationship of master and servant existed between him and his wife at the time of the accident (Orlando v. Pioneer Supply Co., 239 N. Y. 342; Nalli v Peters, 241 N. Y. 177.)

      James T. Cross for respondent.
    The negligence of the driver of respondent’s car is not a bar to his recovery in this action. (Atwater v. Lober, 233 N. Y. Supp. 309; Matter of Andersen, 91 App. Div. 563; Town of Hempstead v. City of New York, 52 App. Div. 182; Smith v. Boston & Albany R. R. Co., 99 App. Div. 94; Woollcott v. Shubert, 217 N. Y. 212.) The object of section 59 of the Vehicle and Traffic Law was to extend liability and not to restrict it. (Schubert v. Schubert Wagon Co., 249 N. Y. 257; McKay v. Syracuse R. T. Ry. Co., 208 N. Y. 359.)
   Hubbs, J.

The respondent was the owner of an automobile which he permitted his wife to use in going to and from her work in the city of Rome. His home was a few miles outside of the city. On the night of June 7th, 1930, the respondent was at his father’s home, about a half mile nearer the city than his own residence. That evening his wife drove his Willys-Khight car to the city to get her mother and on the way home she stopped at respondent’s father’s house and respondent got into the car and sat on the rear seat intending to ride to his home. His wife was driving the car and her mother sat on the front seat with her. On the way home an accident occurred in which respondent was injured and his car damaged. This action is to recover the damages for such personal injury and damages to his car.

The learned trial justice submitted questions in writing for the jury to answer. The following was the first question submitted: “ Was Emma Gochee, the wife of plaintiff, guilty of neghgence in the manner in which she drove plaintiff’s car, which caused or contributed to the accident?” The answer was “ Yes.” In answer to other questions the jury found that the respondent was not neghgent but that the defendant was. The jury fixed the amount of damages and judgment was entered therefor. The sole question for determination is: Was the neghgence of Emma Gochee, respondent’s wife, and driver of the car at the time of the accident, imputable to respondent and did it bar a recovery in this action?

Prior to the enactment of section 282-e of the Highway Law (1924; Cons. Laws, ch. 25) the law in this jurisdiction was firmly established that the owner of a vehicle was not hable for neghgent injury caused in its operation by another unless at the time it was being used on his business. (Rolfe v. Hewett, 227 N. Y. 486.)

The owner was not hable for the neghgence of a person to whom he had loaned his car, whether a member of his family or a stranger, while the car was being used upon the business or pleasure of the borrower: (Potts v. Pardee, 220 N. Y. 431.)

It was to change this well-established rule that the Legislature enacted section 282-e, now section 59, of the Vehicle and Traffic Law (Cons. Laws, ch. 71), for the purpose of making the owner hable for the neghgence of a person legally operating the car with the permission, express or implied, of the owner. Section 59 reads in part: Every owner of a motor vehicle or motor cycle operated upon a pubhc highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.”

One who borrows a car of the owner for his own use is a gratuitous (commodatum) bailee. He is not an agent of the owner. He uses the car for his own business or pleasure, and not for any purpose in which the owner is interested. Neither is he a servant of the owner. He is not subject to his direction or control. True it is that, in discussing the effect of section 282-e, it has been said that the borrower occupies the relation of a servant or agent of the owner and that the owner’s liability in case of an injury incurred by the borrower’s negligence is the same as it would have been if caused by an agent or servant acting in the owner’s business within the scope of his employment. (Psota v. Long Island R. R. Co., 246 N. Y. 388.)

Such expressions indicate the nature and extent of the liability but not the basis or principle upon which the liability is predicated. The statute created a liability where none existed before its enactment. The liability of the owner of a car for the negligence of one to whom he has loaned it rests solely upon the statute; it is a statutory liability. The statute has created a liability where none existed at common law. If the respondent had not been present in the car at the time of the accident, and his wife, lawfully driving it, had negligently injured another without fault on his part, the respondent would have been hable for such injury under the provisions of the statute. Concededly, the wife was a mere gratuitous bailee of the car having the privilege of driving it in the absence of respondent.

If the respondent and his wife had left home together in the car, and an accident had happened through her negligence while driving, no one could seriously contend that he could recover for personal injuries or for damage to the car from the owner or driver of another car whose negligence had contributed to the accident.

We have reached the conclusion that the same rule applies under the facts in this case. When the respondent entered the car, he regained, dominion over it and the rule applicable under the statute in the absence of the owner ceased to apply. It was respondent’s car, he was present and had the legal right to control its operation, and the negligent conduct of the driver was imputable to him. The mere fact that he chose to sit on the rear seat and refrained from directing its operation did not change his rights or limit his liability.

If the driver had negligently injured another, without fault on the part of the person injured, respondent would have been hable under the common law for the car would have been operated in his presence and under his authority and control. The negligence of the driver should be imputed to the owner when present in the car, where the owner seeks to recover from the other negligent party for damages to his person or car.

The statute does not affect the common-law liability of an owner present and in control of his car. Neither does it have the effect of making more favorable his position under like circumstances when he sues to recover damages for personal injuries or injury to his car. In either situation, the common-law rule applies and the negligence of the driver of his car is imputable to him.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.