text:
    John T. Gedney et al., Appellants, v. Marlton Realty Company, Respondent. (Actions 1 and 2.)

      (Argued December 1, 1931:
    decided February 9, 1932.)

      Harold R. Medina, Eugene A. Sherpick, Myles B. Amend and John W. Jordan for appellants.
    Chapter 154 of the Laws of 1865, in purporting to transfer the vested interests of adult remaindermen without their consent, was violative of the due process clause of the Constitution of the State of New York. Where adult remaindermen are concerned, the statute, to be valid, must pro’vide for their consent to the sale. (Matter of Albany Street, 11 Wend. 149; Taylor v. Porter, 4 Hill, 140; Powers v. Bergen, 6 N. Y. 358; Brevoort v. Grace, 53 N. Y. 245; Matter of Easterly, 202 N. Y. 466; Matter of O’Donnell, 221 N. Y. 197.) The failure of the adult remaindermen to appear and object was not a waiver of the constitutional provision, nor was it sufficient to constitute a consent to the sale of the property. (Embury v. Conner, 3 N. Y. 511; Baker v. Bramam, 6 Hill, 47; Matter of Field, 131 N. Y. 184.) The defense of estoppel by judgment is not available. (Fish v. Vanderlip, 218 N. Y. 29; Rudd v. Cornell, 171 N. Y. 114.)

      John Vance Hewitt, Morgan J. O’Brien, Jr., Henry A. Jones and Henry M. Bellinger for respondent.
    The act of 1865 was valid. (Matter of O’Donnell, 221 N. Y. 197; Matter of Bull, 45 Barb. 334; Leggett v. Hunter, 19 N. Y. 463; Westby v. Kiernan, 2 Amb. 697; Rice v. Parkman, 16 Mass. 326; Sohier v. Massachusetts General Hospital, 3 Cush. 483; Linsley v. Hubbard, 44 Conn. 109; Richardson v. Monson, 23 Conn. 94; Norris v. Clymer, 2 Penn. St. 277; People v. Draper, 15 N. Y. 532; Blakeley v. Calder, 15 N. Y. 617; Matter of Kneass, 31 Penn. St. 87; Minnesota Co. v. National Co., 3 Wall. 332; Carroll v. Lessee of Olmsted, 16 Ohio, 251; Jackson v. Babcock, 16 N. Y. 246.) The adult remaindermen waived any constitutional rights they may have had to oppose the sale, and, by their failure to appear and oppose, consented thereto. (Blakeley v. Calder, 15 N. Y. 617; Matter of Field, 131 N. Y. 184; Matter of Kneass, 31 Penn. St. 87; Security Sav. Bank v. California, 263 U. S. 282; Matter of Cooper, 93 N. Y. 507; Gorham Manufacturing Co. v. Tax Comm., 266 U. S. 265;
      Baker v. Braman, 6 Hill, 47.) The plaintiffs are estopped from recovering the land by the record in the accounting suit. (Deeley v. Heintz, 169 N. Y. 129; Barber v. Ellingwood, 137 App. Div. 704; Tonnele v. Wetmore, 195 N. Y. 436; Hay v. Hillegass, 275 Penn. St. 497; Hull v. Hull, 225 N. Y. 342; Thorn v. De Breteuil, 179 N. Y. 64; Childs v. Childs, 150 App. Div. 656; Weintraub v. Siegel, 133 App. Div. 677.)
   Crane, J.

This action is brought in ejectment to recover two parcels of real property, known respectively as Nos. 108 and 110 West Eighteenth street, in the borough of Manhattan, city of New York, which were formerly owned by one John Tonnele, who died in 1846. By his will he devised property, including these premises, to his executors, the income therefrom after his wife’s decease to be applied to the suitable education and support of his granddaughter, Rebecca T. Rice, during her minority, and the entire net income of the property thereafter to be paid to her during her lifetime. At the decease of the granddaughter he gave and devised the said premises to her lawful issue, but in case she died without issue, then to his son John, referred to in the case as John Tonnele, II.

The life interest or estate of the granddaughter, Rebecca T. Rice, continued until November 2, 1917 (seventy-one years), at which time she died without issue, never having had a child. The property thereupon passed to, or vested in possession of, the heirs of John Tonnele, II. These plaintiffs are the descendants of Eloise, who was one of the daughters of John Tonnele, II. He had died intestate in 1852, his children then inheriting his vested remainder in the premises in question. This remainder was subject to divestment only in the event that Rebecca T. Rice, granddaughter of John Tonnele, the elder, died leaving lawful issue. John Tonnele, II, at his death in 1852 left eight children, three of whom, Cecile Josephine, Laurencine Salles and Isabella Zadina, died intestate, leaving no issue. The vested remainder of each of these three children being in each case an undivided one-eighth interest, passfed upon their deaths to the other five children of John Tonnele, II. The interest of these plaintiffs, therefore, is derived in part from Eloise and in part from Cecile Josephine, Laurencine Salles and Isabella Zadina. The importance of these details of inheritance lies in the fact that the year 1865 is the important date for the determination of the rights of the parties to this action. At that time Eloise was an infant, while the other children were adults. The plaintiffs’ interest, therefore, comes through those children of John Tonnele, II, who in 1865 were all adults, with the exception of the infant Eloise. Cecile Josephine and Isabella Zadina died in 1856 and 1860 respectively, the other six children inheriting their vested interest. In 1865, therefore, there were five adult surviving children and one infant, Eloise, who were entitled to the remainder after the death of Rebecca T. Rice, without lawful issue her surviving.

Talcing ourselves back, therefore, to the year 1865, we find the Legislature, on March 20th of that year, enacting a law known as chapter 154 of the Laws of 1865, authorizing the Supreme Court of the State of New York upon the petition of Rebecca T. Rice, and upon notice as therein directed to all parties having an interest in the properties, to direct a sale of the premises which are held in trust by the executors of said John Tonnelle, under the provision of the said will for the benefit of the said Rebecca T. Rice, or any part or parcel thereof, from time to time, as may be adjudged to be expedient and calculated to promote the interests of the said Rebecca T. Rice, or any persons whether yet in being or not, to whom or for whose benefit the trusts under the will of said John Tonnelle may inure after the death of the said Rebecca T. Rice. * * *

§ 3. The proceeds of such sale or sales may, under the direction of the court, be applied by the said trustees to the payment of any debt lawfully incurred by them as such trustees, or the said Rebecca T. Rice, in respect to such trust property, and any assessments paid by her for the benefit of the Said trust property, and in fulfilling the trusts declared or created in and by said will; and to the payment of all incumbrances, legally placed upon the same, and all taxes and assessments now due or to become due on said trust property, and the balance shall be invested upon said lots or other real estate in the city of New York, or in stock, bonds or securities of the state of New York, or the United States of America, to be held and disposed of for the benefit of such persons as may be or may become interested therein, under the provisions of said will, in accordance with the terms of said will.”

Thereafter, upon the petition of Rebecca T. Rice, the life tenant, for the sale of four lots, including the premises here in question, Nos. 108 and 110 West Eighteenth street, an order of the Supreme Court was made directing the sale of the property in accordance with the terms and conditions of said statute. Notice to all the parties in interest, including those from whom the plaintiffs inherit, was given, a guardian for Eloise appointed, a reference had, testimony taken showing the conditions of the property and the necessity for the sale and all other steps complied with, so that in this action no attack is made upon the regularity of the proceedings leading up to the sale.

The defendants derive title through the purchaser at this sale, the property in the meantime having become very valuable in comparison with prices in 1865. As before stated, the plaintiffs have brought this action of ejectment, seeking to oust the defendants on the ground that chapter 154 of the Laws of 1865 was unconstitutional in that it authorized the sale of vested interests of living adult persons whose property could not legally be disposed of without their consent. In Powers v. Bergen (6 N. Y. 358) and Brevoort v. Grace (53 N. Y. 245) it was held by this court that the Legislature has no power to authorize by special act the sale of private property, for other than public uses, without the consent of the owner, except in cases of necessity arising from infancy, insanity or other incompetency or the interests of those not in being. Where the parties entitled to future estates are under no disability to act for themselves the Legislature has no constitutional power to cause lands to be sold by special act. As the exceptions indicate, the Legislature can, by special act, authorize the sale of infant's property, vested or contingent, when it is for the benefit of the infant, and thus convert real property into personalty. (Leggett v. Hunter, 19 N. Y. 445.) The Legislature, by general act, had also provided by 2 Revised Statutes, page 315, title III, sections 1 to 95, for the partition of lands when held in joint tenancy or tenancy in common. In Blakeley v. Calder (15 N. Y. 617, 623) it was stated in an opinion by Denio, J., that the remaindermen under these provisions could partition real property over the objection and against the will of the life tenant, a thing which cannot be done to-day according to section 1014 of the Civil Practice Act. (See, also, Jackson v. Babcock, 16 N. Y. 246, p. 249.)

The act of 1865, however,- was enacted for the benefit of the life tenant, Rebecca T. Rice, and was not an authorization for an infant’s proceeding for the benefit of Eloise Tonnele. “ On the petition of Rebecca T. Rice, and her husband,” the Supreme Court may authorize the sale of the trust property, if it be calculated to promote her interests. The infant, or her guardian, could not initiate any steps under this act. Neither was the subsequent sale made pursuant to the general partition statutes.

We come, therefore, face to face with the law as stated in Brevoort v. Grace (53 N. Y. 245), where the facts, fundamentally, were the same as these. Leffert Lefferts left a will in which he devised one-half of the income of his farm to his wife, Maria Lefferts, and the residue of said income to his daughter, Mrs. Brevoort, during her life. The remainder of the farm to her issue in fee, but in case she should have no issue her surviving, then he devised such residue of the farm to such children of his brother John, deceased, as should be living at the time of his own death, share and share alike. Mrs. Brevoort was the only child of the testator. Six children of his brother John were hving at his death but thereafter died leaving a great number of heirs, most of whom were adults. Mrs. Brevoort had but one child hving, Henry L. Brevoort, over twenty-one. If Henry died before his mother without issue, these heirs of John, infants and adults, would take the property. The changes which had come in the development of Brooklyn made the property unprofitable — the taxes and assessments were greatly in excess of any income derived therefrom. Thereupon the Legislature enacted chapter 23 of the Laws of 1872, which provided that the Supreme Court might upon petition of Mrs. Brevoort authorize and order a sale in fee simple of so much of the property as was calculated to promote the interest of Mrs. Brevoort and those entitled to the estate at her death. The act is almost exactly like the one here in question, chapter 154, Laws of 1865. This court said: The real question in the case is whether the Legislature has the power, by special act, to authorize and provide for the sale of the interest of known parties who have attained their majority and who are competent to act for themselves in real estate, and convert the same into personal, and provide for the investment and management of the proceeds without their consent, upon the ground that such sale would, in their judgment, promote the interest of such parties and others who are infants or who are not in being, and cannot, therefore, provide for the management of the property (pp. 250, 251). * * * The question then is as to the rights of the adult heirs of the children of the testator’s brother John. In the event of the death of Mrs. Brevoort, leaving no issue surviving, an event which is possible, the title to the premises would rest in part in these adult heirs as tenants in common with the other heirs, who are now infants, unless these rights are barred by the sale under the statute. The question is thus presented, whether the Legislature can, by a special statute, authorize the sale of lands to which adults, competent to act for themselves, have a contingent right, and thus cut off such contingent interest therein, should such events occur as would give the title in whole or part to those having such interest (pp. 253, 254). * * *

It is insisted by the counsel for the respondent that the act in question should be sustained, for the reason that some of the heirs are infants, and that the Legislature has the power to authorize the sale of the interest of these infants. But this does not confer the power to authorize a sale of the interest of the adults without their 'consent” ip. 259).

This decision has become a rule of property in our State, cited and followed in subsequent cases (Losey v. Stanley, 147 N. Y. 560, 572; Ebling v. Dreyer, 149 N. Y. 460, 467; Matter of Vanderbilt, 172 N. Y. 69, 73; Matter of O’Donnell, 221 N. Y. 197, 203), and must be applied to the facts now presented. The longevity of the life tenant has given time for the property in question to greatly increase in value and may cause misfortune to those who have relied somewhat upon the lapse of years to qualify the effect of this law. Yet there it is and has been in the books for the past half century, well known to the conveyancers. The purchasers have merely taken those chances which attend the sale of any doubtful title.

The act of 1865, before us, provides for notice of Mrs. Rice’s application for a sale of the property to the nonresident adults, and under a similar provision, the Supreme Court of Pennsylvania (Matter of Kneass, 31 Penn. St. 87, 91) has held that if after such notice the parties file no objections, their assent will be conclusively presumed, and the title of the purchaser freed from their subsequent objection. If a statute be unconstitutional as attempting to sell a person’s property for a private instead of a public purpose, i. e., without due process, we do not see how the owner loses any rights because he fails to object or appear in proceedings which as to him are a nullity — not recognized by our law. Some constitutional rights may be waived, but no man can lose his property by mere silence when it is unlawfully taken from him. (Embury v. Conner, 3 N. Y. 511.)

Whether the Legislature would have the power, as has been held in some cases (Linsley v. Hubbard, 44 Conn. 109; Sohier v. Massachusetts General Hospital, 3 Cush. 483, 496), to authorize by a general act the conversion of adults’ interest in real property, which had already vested, into personalty, we need not pass upon, as the question is not here and may never arise. So far as contingent or vested interests may come into being in the future, I take it that the Legislature has power to direct not only how such interest may be created or divested, but also how they may be sold and disposed of for the interests of all concerned, provided all have equal protection under the Federal Constitution and due notice. (See Real Prop. Law; Cons. Laws, ch. 50, §§ 105, 106 and 107; Matter of O’Donnell, 221 N. Y. 197.)

The accounting proceeding of Tonnele v. Parish, in 1919, to which these plaintiffs were parties, is not res adjudícala upon the point here raised. The substituted trustee was accounting after 1917 for the moneys it had received from its predecessor; the plaintiffs refused to receive any part of it, if it included the purchase price for the properties here in question, and specifically reserved their right to subsequently claim the law of 1865 unconstitutional and the sale of the real property illegal as to them. The referee and the court made no decision upon the constitutionality of the act. (Matter of Jackson, 258 N. Y. 281.)

For the reasons here stated, the judgments below should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    Joshua Parker, Respondent, v. Olga I. Hoppe, Appellant.
    (Submitted January 4, 1932;
    decided February 9, 1932.)

      Harris Jay Griston and Philip Krimko for motion.

      Vermont Hatch and Thomas Kiernan opposed.
   Crane, J.

The very full and thorough brief submitted by the respondent on his motion for a reargument requires a further word from us, in view of the many authorities cited, and the apparent misunderstanding of their application, and the purport of our decision. We in this case have been talking about rubles as the money and circulating medium of the country which at all times, so far as appears from the record in this case, retained its nature as rubles, although depreciating in purchasing and exchange value. The court is solely interested in translating these rubles into dollars, according to the value in our money of the Russian ruble at the time when the plaintiff was entitled to receive them — when they were due to him in Russia.

As stated in the main opinion, the purchase and sale was a Russian contract tó be performed in Russia by subjects of that country. The plaintiff rescinded the contract and was entitled to receive back from the defendant the 100,000 rubles paid as the purchase price. Suppose that instead' of going to court, the defendant, upon the plaintiff’s demand, had paid back the 100,000 rubles. They would have been received in Russia in the money of that country. No account would have been taken of depreciation. If upon receiving them the plaintiff had immediately brought his rubles to New York, he could only have gotten for them their value in our money at that time. No one here would have given him their value as it was the year before. Why should the courts adopt a different valuation because repayment by the defendant has been forced instead of being voluntary? Now that is this case. The plaintiff rescinds and wants his money back; the court gives him his money as of the day he is entitled to it, and the New York courts translate its value into United States money as of that day.

The recent monetary change which has come in the value of the pound sterling may be taken as an illustration. Assume that a contract was made in England between Englishmen, to be performed there, for the purchase and sale of goods. The price is paid when the pound sterling has a fixed and stable value. After the abandonment of the gold standard and the fall in the value of the pound, the purchaser rescinds his contract and wants his money back. What would the seller and the courts give him? He would receive the same number of pounds which he had paid, irrespective of their purchasing or exchange value. No court in England would entertain for a moment an inquiry as to the difference in value of the pound between the time of payment and the time of the return. Yet the difference in the exchange value in this country would be almost a dollar and a half to the pound. Such an one suing in rescission in our courts would receive in United States money the value of the pounds as of the time he was entitled to them, and not as of the time he had paid them to the seller. The parties to this contract were dealing with money as money. Had property of any other nature been given to the seller, on rescission he would have been obliged to return the identical property or replace it in value as of the time received less natural deterioration, cost of keep and like deductions. (Cox v. Stokes, 156 N. Y. 491, 507; 3 Black on Rescission and Cancellation, § 690; Woodward on Quasi-Contracts, §§ 260-268; Keener on Quasi-Contracts, pp. 300 to 302.)

This is the law as we find it running through the cases now cited for the first time by the respondent. (Pilkington v. Commissioners for Claims on France, [1821] 12 Eng. Rep., Full Reprint, Privy Council, book 1, p. 381; or II Knapp, 7.) In this case money had been confiscated by France during the period of the Revolution. A debtor to an English firm was obliged to pay the money to the French government or else refrain from paying it to his English creditor. Later, by treaty of Paris, March, 1814, commissioners were appointed of the two contracting powers to examine the claim of subjects against the French government for the value of their goods, tangible or intangible, confiscated by the French authorities, up to the amount of their loss. A question arose over the depreciation in value of assignats, from the passing of the confiscation decree to the repeal of it. The Privy Council decided that the French government should pay the value of assignats at the time of confiscation, or, in other words, should stand the loss through depreciation in money value. The debt was due when confiscated. At this date the money was due the creditor in England, and the debtor failed to pay it because of the French decree. The loss was due to the wrong of the French government in confiscating the debt. Such also was the ruling in “ Celia ” (Owners) v. “ Volturno ” (Owners) (L. J. [1921] Rep. New Series, 90 Priv. Council, p. 385).

Counsel refers to the numerous cases dealing with Confederate money, arising shortly after the Civil War. The principle in all of these is, that the Federal government recognizes the validity of the contract,- and that the purchases made, for which notes or bonds were given, payable in Confederate money, are valid in the manner in which the parties intended them to be valid, i. e., the price was intended to be the value of the Confederate money at the time of the contract. The Confederate money was not recognized by the Federal government as legal at any time. It considered it as of no value. For the purpose, however, of establishing the intent of the parties, the court determined that the seller could recover from the purchaser a sum, in Federal money, equalling the value which the parties had in mind at the time of the contract. This is clearly expressed in the following words of Mr. Justice Field, in Effinger v. Kenney (115 U. S. 566, p. 575): Where a contract is for the delivery of specific articles, the rule undoubtedly is that the damages recoverable for its breach are to be determined by the value of the articles at the time and place of their delivery. Where a contract is payable in a specified currency, the rule is also clear that such currency is demandable and receivable at the maturity of the contract, whatever change in its value by increase or depreciation may have taken place in the meantime. The damages recoverable for a breach of the contract are to be measured by the value of the currency at its maturity. But in these rules it is assumed that the articles to be delivered are lawful property, and that the currency to be paid is a lawful currency, and that, therefore, in the creation and exchange of both no public duty is violated. The treasury notes of the Confederate States constituted, under the laws of the United States, neither lawful property nor lawful currency. They were the promises of an insurgent and revolutionary organization, payable only when its success should be established by a treaty of peace with the United States. Of the value of such promises the National courts will make no inquiry, except as they were receivable in contracts not designed to further the insurrection. They were receivable in such contracts because imposed as a currency upon the community by irresistible force. Their intrinsic value was nothing, but their exchangeable value, by reason of their enforced circulation, was the estimate of them at the time in lawful money of the United States. The relation between them and coin and other lawful money was well known in the community, as it was only with coin or other lawful money as a standard of value that commerce was conducted between the insurgents and persons outside of the Confederacy. Persons then parting with lands and goods for Confederate notes, or for the promise of them, attached to them this exchangeable value, and expected to receive it then or afterwards. They did not intend to surrender, or suppose they were surrendering, their property without any consideration, if the Confederacy should fail, and its notes lose this exchangeable value. They expected an equivalent in any event. Therefore, as having the value thus given to them at the time and place of their receipt, or the promise of them, the National courts will treat them, but not as having a value at any other time or place. Any other rule would involve considerations of inextricable difficulty, and would be inconsistent with justice in determining the value of contracts thus payable, where they matured near the close or after the overthrow of the Confederacy.”

The rubles in this case always remained during the times in question, the money of Russia, under its different forms of government. So far as the record here shows, the ruble did not change its nature as money, nor was it debased in its intrinsic value. If a country creates a new monetary system, or by law debases its coinage by increasing the alloy, a different situation would arise. We have no such question before us in this case. (Pilkington v. Commissioners for Claims, supra, pp. 385, 386.)

In our former opinion we did not decide the actual date at which the exchange was to be figured; we did decide, for reasons there stated, that it was not the date of payment under the contract or the date of the contract. This was the only question presented and argued. The case came up on a motion for judgment on the pleadings and affidavits; there had been no trial. We felt that as long as other questions had not been argued or presented we had best reserve them for later determination. We have not changed our opinion in this particular, although we are now requested by the respondent to determine the day of breach as of the time when the defendant sold the wax in England. What was the exact date of rescission and whether value should be fixed as of the time of the breach or the time of the rescission, if these be different dates, we leave for consideration on the facts as established and after a full and timely presentation.

With these further comments upon the case, and the reasons for our decision, we deny the application for reargument.

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

Motion denied.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Walter Borowsky, Michael Roadick and Julius Siratka, Appellants.
    (Argued January 11, 1932:
    decided February 9, 1932.)

      Joseph Lonardo, Alexander Del Giorno, William Kerwick and Stephen F. Burkard for appellants.
    The confessions were involuntary and a verdict of guilt against the weight of evidence, so that it became the trial court’s duty to reject the confessions, without submitting any question of fact on that issue to the jury, despite the apparent conflict in the evidence. (People v. Wiener, 248 N. Y. 118; People v. Barbato, 254 N. Y. 179.) The confessions were incompetent, as they were procured through the influence of fear produced by threats and by physical injuries. (Code Crim. Pro. § 395; People v. Pantano, 239 N. Y. 416; People v. Doran, 246 N. Y. 409; People v. Wiener, 248 N. Y. 118; People v. Barbato, 254 N. Y. 179.)

      Charles P. Sullivan, District Attorney (Mordecai Konowitz of counsel), for respondent.
    The trial court properly-submitted to the jury the question of the voluntary nature of the confessions and their findings are justified by the evidence. (People v. Wiener, 248 N. Y. 118; People v. Doran, 246 N. Y. 409; People v. Roach, 215 N. Y. 592.) The confessions were properly received in evidence and submitted to the jury with correct and full instructions. (People v. Doran, 246 N. Y. 409.)
   Per Curiam.

The preponderance of evidence induces the belief that the defendants Borowsky and Roadick were beaten by the police. The beating is not conclusive that the later confessions to the District Attorney were made under the influence of fear produced by threats ” and so incompetent under the statute (Code Crina. Pro. § 395). Roadick was not swerved by the beating from his protestations of innocence. He refused to confess to the police. He refused later on to confess to the District Attorney. He yielded when Siratka and Borowsky were brought into the room and repeated in his presence, confessions already made. A jury might reasonably find that he yielded not to fear of violence, but to a conviction that denial of guilt was hopeless when bis confederates had turned against him. What is true of Roadick’s confession is true for the most part of Borowsky’s. Borowsky was not swerved by violence or the fear of it. He confessed when Siratka accused him, and not before. The hour had then arrived, at least to his thinking, when it was useless to hold out longer.

The case for the defendant Siratka stands upon a different basis. We think as to him that there was a fair question of fact whether he was beaten by the officers, and also a question whether the confession at the scene of the felony was induced by a fear that the beating would be renewed or by an oppressive sense of guilt upon finding himself at the place where the murder had been committed and still more by the belief that he had been identified by the wife of the murdered man and that denial would be futile.

The judgments of conviction as to each defendant should be affirmed.

Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not sitting.

Judgments of conviction affirmed.


author: O’Brien, J.

text:
    John Moller, Respondent, v. The Peoples National Bank of Brooklyn, Appellant.
    (Argued January 11, 1932:
    decided February 9, 1932.)

      Marshall McLean for appellant.
    The word “ imposed ” as used in the tax covenant is synonymous with the word “ charged.” (Williston on Contracts, § 219; Manning Realty Corp. v. Topping Bros., 120 Misc. Rep. 592; 6 Words & Phrases, First Series.) The tax for 1930 was not charged against the premises, nor could it be paid until after the expiration of the lease and the obligation of paying the same is not chargeable against the lessee. (Ward v Union Trust Co., 224 N. Y. 73; New York City Charter, § 914; Laws of 1916, chap. 17.)

      Lester J. Moller for respondent.
    The obligation of the defendant is absolute as the taxes were imposed upon the premises on March 28, 1930, during the term of the lease. (Wall v. Hess, 232 N. Y. 472; Apex Leasing Co. v. White Enamel Refrigerator Co., 202 App. Div. 354; Lewis v. Petersen, 241 N. Y. 268; Walker v. Stein, 222 App. Div. 22; Ogden v. Getty, 100 App. Div. 430; Terry v. Lucas, 66 Misc. Rep. 346; Brecher v. 11 West 42nd Street, Inc., 132 Misc. Rep. 329; Welch v. Phillips, 224 Mass. 267; Amory v. Melvin, 112 Mass. 83; Matter of Sherwoods, 210 Fed. Rep. 754; Elliott v. Gantt, 64 Mo. App. 248; Waterman v. Harkness, 2 Mo. App. 494.) The addition of the words “ or charged ” does not limit the defendant’s obligation to the payment of only such taxes as became hens during the term, of the lease. (Terry v. Lucas, 66 Misc. Rep. 346; Elliott v. Gantt, 64 Mo. App. 248; Waterman v. Harkness, 2 Mo. App. 494; Wall v. Hess, 232 N.Y. 476.)
   O’Brien, J.

Plaintiff leased premises in the borough of Brooklyn to defendant for a term of twenty years beginning May 1, 1910. The tenant covenanted to “ discharge in each and every year all such taxes, water rates and assessments as may be imposed or charged upon the demised premises herein described, and if the same shall not be so paid and discharged within three months after the same shall have been imposed, then to yield, render and pay unto the said party of the first part, his legal representatives or assigns, within one month after such default as and for additional rent whatever sums may be necessary to pay and discharge the said taxes, water rates and assessments for such year, or either of the same remaining unpaid, with all penalties and interest accrued thereon."

The complaint alleges that on March 27, 1930, taxes in a certain amount were “ imposed or charged " on the premises. The answer denies that allegation but admits that on that date the amount of the tax “ to be imposed or to be charged " upon the premises for the year 1930 was fixed and determined pursuant to the provisions of the Greater New York Charter and that the first half of the taxes for the year 1930 became payable May 1, 1930, and the second half on November 1, 1930. It denies any knowledge or information sufficient to form a belief as to the exact amount of the tax payable on May 1, 1930, and on November 1, 1930. The issue of law, as raised by the pleadings, is whether on March 27, 1930, the tax was actually “ imposed or charged " or whether on that date an amount was fixed which later was to be imposed or charged." The answer denies not only that the taxes were charged on that date but it also denies that they were imposed.

When this lease was executed, section 911 in the form in which it appeared in the amended Greater New York Charter (Laws of 1901, eh. 466) and section 914, as amended by chapter 447 of the Laws of 1908, were in effect. Section 911, as it then read, directed the Board of Aldermen to cause the assessment rolls to be delivered on or before September 15 of each year to the collector of taxes with an annexed warrant requiring him to collect from the persons named in the rolls the sums mentioned opposite their respective names. Section 914 at that time directed the receiver of taxes to give public notice that the assessment rolls have been delivered to him and that all taxes shall be due and payable on the first Monday of October in each year. The same section also provided that all taxes should be and become hens on the real estate affected on the day when they became due and payable and should remain liens until paid. After, the execution of the lease and prior to the expiration of its term, both sections of the charter were amended. By chapter 455 of the Laws of 1911, section 911 was changed by substituting the date March 28 for September 15, and by chapter 17 of the Laws of 1916, section 914 eliminated the date first Monday in October. As a substitute for that date upon which taxes upon real estate shall be due and payable, the statute designates one-half on May 1 and the second half on November 1. This section, as amended, then proceeds: “All taxes shall be and become liens on the real estate affected thereby and shall be construed as and deemed to be charges thereon on the respective days when they become due and payable as hereinbefore provided and not earlier and shall remain such liens until paid.” The phrase, “ and shall be construed as and deemed to be charges thereon,” did not appear in the statute at the time the parties entered into the lease. Specifically, the word “ charges ” was then absent.

The parties may be presumed to have contracted with a view to a possible change in the law prior to the expiration of the term of the lease but, in attempting to discern their intent by the language which they used, they may also be presumed to have had primary reference to the state of the law as it existed at the date of execution. Then, neither the word “ imposed ” nor the word “ charged ” was included in the statute. Shall the expression “ imposed or charged ” be treated as disjunctive or shall the words be construed as synonymous? Is one explanatory of the other or were they intended to signify different things? If they are interpretive or expository of each other, " charged ” might mean the same as “ imposed.” In a case where a tenant covenanted to pay taxes which shall be “ assessed, levied or imposed ” during the term, we have held that on the date prescribed for the delivery of the assessment rolls to the collector of taxes, the taxes were finally and unalterably “ fixed and imposed ” upon the demised premises, although not then payable. (Wall v. Hess, 232 N. Y. 472, 476.) So if we take " charged ” to mean “ imposed,” we would be obliged to decide in the case before us that on March 27, 1930, the taxes were imposed and the tenant must pay them, although they did not become payable and no lien attached to the realty until May 1. If, on the other hand, we interpret “ imposed ” as explained and defined by “ charged,” then the tenant is not hable until, in the language of section 914 as it read at the expiration of the lease, the taxes become liens or charges. Although the statute did not specifically refer to charges but dealt only with hens when the parties agreed upon the verbiage in their lease, the most reasonable inference concerning their intent leads to the conclusion that they intended that "imposed” and “charged” should be treated as synonymous and should have reference to the attachment or the imposition or the impressment of a hen. In the covenant the word " charged ” is used only. once. Twice the parties employ the word " imposed.” When the lease provides that the tenant shall discharge all taxes as may be imposed or charged ” and, if he fails to discharge them within three months after they shall have been imposed,” he will pay to the landlord within one month after default whatever sum as may be necessary to discharge not only the taxes but also all penalties and interest, one cannot reasonably conclude that the parties intended to draw a distinction between a tax the amount of which has merely been fixed and imposed, in the sense in which the language is defined in Wall v. Hess (supra), and a tax which has been charged. The word imposed ” cannot be deemed to have been used in different senses in the same sentence. From the context it must have been intended to mean the same as charged ” and to signify an assessment which has ripened into a due payment and in default of which the law attaches a hen to the land as well as a penalty for failure to discharge within a prescribed duration. It is hardly credible that the three months’ period of grace was intended to run from a date prior to the one when the tax was first payable, yet that would be the result of holding that it ran from the date when the tax was imposed, if imposed ” is interpreted as meaning something different from charged.” We think, therefore, that on March 27, 1930, a definite amount became fixed which upon May 1 would become a charge and hen. The purpose of this covenant, unlike the one in Wall v. Hess (supra), must fairly be read as intending to protect the landlord from the imposition only of hens, charges, penalties and interest upon unpaid taxes which might become payable during the term of the lease.

The judgment of the Appellate Division and that of the Special Term should be reversed and the plaintiff’s motion for judgment on the pleadings denied, with costs in ah courts.

Cabdozo, Ch. J., Pound, Ceane, Lehman and Hubbs, JJ., concur; Kellogg, J., not sitting.

Judgments reversed, etc.


author: Lehman, J.

text:
    Emilio Rebora et al., as Adjusters and Trustees for Navigazione Generale Italiana, Respondents, v. British & Foreign Marine Insurance Company, Ltd., Appellant.

      (Argued October 8, 1931;
    decided February 9, 1932.)

      D. Roger Englar and James W. Ryan for appellant.
    The trial court erred in admitting in evidence an agreement signed by third persons, the consignees, without the knowledge of the defendant and not connected with it.
      (Det Forenede v. Insurance Co., 31 Fed. Rep. [2d] 658; Luckenbach v. McCahan Sugar Co., 248 U. S. 139.) The trial court erred in admitting in evidence the adjustment or apportionment of general average based on hearsay or ex parte statements of the shipowner or other interested third parties. (The Nesco, 47 Fed. Rep. [2d] 643.) Even if a proper general average adjustment were admissible as proof of the facts stated therein, this adjustment was inadmissible because it shows on its face that it is erroneous as a matter of law. (The Casey, 39 Fed. Rep. [2d] 136; Baulec v. New York Co., 59 N. Y. 356; Pollock v. Pollock, 71 N. Y. 137; Bond v. Smith, 113 N. Y. 378; Cordell v. New York Co., 75 N. Y. 330; Dubois v. City of Kingston, 102 N. Y. 219; Pauley v. S. G. & L. Co., 131 N. Y. 90; Linkauf v. Lombard, 137 N. Y. 418; Hemmens v. Nelson, 138 N. Y. 517; Laidlaw v. Sage, 158 N. Y. 73; Cassidy v. Uhlmann, 170 N. Y. 505; Johnson v. N. Y. C. Co., 173 N. Y. 79; Schoepflin v. Coffey, 162 N. Y. 12; Barnard v. Adams, 10 How. [U. S.] 270; Charter Co. v. Bowring, 281 U. S. 515; National Board of Marine Underwriters v. Melcher, 45 Fed. Rep. 646.) The trial court erred in assuming jurisdiction to determine the liability of goods and the extent of a maritime lien in rem on them for general average contribution. (Langnes v. Green, 282 U. S. 531; Merritt v. Tice, 77 App. Div. 326; 118 App. Div. 123; The Lewis H. Goward, 34 Fed. Rep. [2d] 791; Charter Co. v. Bowring, 281 U. S. 515; The Casey, 39 Fed. Rep. [2d] 136; Moran v. Sturges, 154 U. S. 256; The City of Norwich, 118 U. S. 468; Panama R. R. Co. v. Vasquez, 271 U. S. 557; Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109; St. Louis Railway v. Taylor, 266 U. S. 209; Vose v. Cockcroft, 44 N. Y. 418; The China, 7 Wall. [U. S.] 53.)

      Homer L. Loomis and Philip A. Donahue for respondents.
    The trial court, as a court of common law, was possessed of jurisdiction. The action is in personam, not
      in rem, and is to enforce the personal liability of the defendant on its guaranty. (Red Cross Line v. Atlantic Fruit Co., 233 N. Y. 373; 264 U. S. 109; Steamboat Co. v. Chase, 16 Wall. [U. S.] 522; Nelson v. Belmont, 21 N. Y. 36; Sherwood v. Ruggles, 2 Sandf. 55; Waldron v. LeRoy, 2 Caines, 263; Fowler v. Rathbones, 12 Wall. [U. S.] 102; Hobson v. Lord, 92 U. S. 397; Broadnax v. Cheraw & Salisbury R. R. Co., 157 Penn. St. 140; Jones v. Bridge, 2 Sweeny, 431; Columbian Ins. Co. v. Ashby, 13 Pet. [U. S.] 331; Barnard v. Adams, 10 How. [U. S.] 270; Marwick v. Rogers, 163 Mass. 50; Merithew v. Sampson, 86 Mass. 192; Backus v. Coyne, 35 Mich. 5; Cutler v. Rae, 7 How. [U. S.] 729; Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638; Rounds v. Cloverport Foundry, 237 U. S. 303; Hudson v. New York & Albany Transportation Co., 180 Fed. Rep. 973.) The parties to the shipping venture, by agreement among themselves both at time of shipment and at time of redelivery of the cargo, provided for the adjustment of the general average in Italy pursuant to the laws there in force. The defendant recognized the plaintiffs in Genoa as the adjusters of the general average and co-operated with them in there adjusting the general average. (Mavro v. Ocean Marine Ins. Co., L. R. 9 C. P. 595; L. R. 10 C. P. 414; Nelson v. Belmont, 21 N. Y. 36; McAndrews v. Thatcher, 3 Wall [U. S.] 347; Pacific Mail S. S. Co. v. New York, H. & R. Mining Co., 74 Fed. Rep. 564; National Board of Marine Underwriters v. Melcher, 45 Fed. Rep. 643; Olivari v. Thames & Mersey Marine Ins. Co., 37 Fed. Rep. 894; Simonds v. White, 2 B. & C. 805; Charter Co. v. Bowring, 281 U. S. 515; The Jason, 225 U. S. 32; Lewis v. Williams, 1 Hall [N. Y.], 430; Strong v. Firemen Ins. Co., 11 Johns. 323.) The general average adjustment was not open to attack except for fraud, corruption or other misconduct. (Bedell v. Kennedy, 109 N. Y. 153; N. Y., L. & W. W. Co. v. Schneider, 119 N. Y. 475; Howard v. Sexton, 4 N. Y. 157; Davis v. Rochester Can Co., 124 Misc. Rep. 123; Cobb v.
      Dolphin Manufacturing Co., 108 N. Y. 463; Welch v. Probst, 151 App. Div. 147; The John M. Chambers, 24 Fed. Rep. 383; Backus v. Coyne, 35 Mich. 5; Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109; Lewis v. Williams, 1 Hall [N. Y.], 430; Dalglish v. Davidson, 5 D. & R. 6; Strong v. Firemen Ins. Co., 11 Johns. 323; Loring v. Neptune Ins. Co., 20 Pick. [Mass.] 411; Broadnax v. Cheraw & Salisbury R. R. Co., 157 Penn. St. 140; Leggett & Co. v. 500 Cases of Tomatoes, 15 Fed. Rep. [2d] 270; Johnson & Higgins v. Garrigues Co., 30 Fed. Rep. [2d] 251.) The general average agreement or bond was properly admitted in evidence. It was the only document conferring upon the plaintiffs their status as general average adjusters or trustees, which was put in issue by the defendant’s answer, and it was the foundation of the adjustment and of the existence of which the guarantor must have known not only by reason of invariable practice but also because of its dealing with the average adjusters and trustees and securing their rights as fixed therein. (Fidelity & Deposit Co. v. Queens County Trust Co., 226 N. Y. 225; Williamson v. Brown, 15 N. Y. 354; First Nat. Bank v. National Broadway Bank, 156 N. Y. 459.)
   Lehman, J.

The steamship Casería stranded in the harbor of Palermo on February 28, 1920, in a sudden storm. The cargo was removed and placed upon lighters. The steamship’s hull was damaged by the stranding. After the cargo was removed, the stranded steamship was pulled off by tugs and suffered further damages. The damages could not be repaired within a reasonable time so that the steamship might continue the voyage. The cargo was taken ashore and the shipowners forwarded most of the cargo to New York, the original place of destination, by another vessel of the same line. When the cargo arrived here, the shipowner refused delivery until the consignees had signed agreements for the adjustment of the general average contribution for which the goods might be liable, and had given guaranties to pay such contribution. The defendant insurance company-had insured two consignments of goods. To enable the consignees to obtain delivery of the goods, the defendant signed the following guaranty:

“ New York, Apr. 1, 1920.
Messrs. Encio Rebora & Elia Tarabotto,
In consideration of the delivery from the S. S. Caserta ’ of all the goods insured by us, hereafter to be specified, without requirement of the deposit, we hereby guarantee the payment of all proper general average, salvage and/or special charges for which said goods are hable.
BRITISH AND FOREIGN MARINE INS. CO. (LTD) “ W. A. W. Burnett,
‘‘ Sub- Underwriter.”

The defendant had notice before it signed the guaranty that the rights of the consignees were governed by the provisions of the bill of lading. The bill of lading contains a provision that (Article 32) '* in case of general average the adjustment shall be made at Genoa at the request of the Ship owning company in an amicable way, through two adjusters selected among the Expert Public Accountants registered at the Board of the Province of Genoa and appointed by specific authority given to the said Company from this moment.” The Ship owning company,” pursuant to this power, appointed these plaintiffs as adjusters. The bill of lading further provides that all consignees agree to sign an agreement for general average contribution and give a deposit as guaranty for such contribution before delivery of the goods, and that the amount fixed as a guaranty for the average contribution shall not be subject to contestation. If the defendant knew that the shipowner had appointed these plaintiffs as adjusters, then by its letter it ratified the appointment, for its letter is addressed to the adjusters, and on its face the obligation assumed by the defendant runs to the adjusters and not to the shipowners. After five years these plaintiffs, acting as adjusters, completed the statement of the general adjustment. In this action they have obtained judgment against the defendant for the general average charge, as shown by that statement, upon the goods which defendant had insured.

At the trial the plaintiffs urged that the statement of the general average prepared by the adjusters was a binding and conclusive adjudication of the charges for which the goods are hable, not subject to collateral attack by the defendant without proof of fraud, corruption or other misconduct. On the other hand, the defendant objected that the statement was not competent evidence and was without any probative force to establish the amount of defendant’s liability. The trial judge held that the statement was admissible as prima facie, but not conclusive, evidence of the facts therein set forth, and submitted to the jury a number of questions as to its correctness.

The evidentiary competency and force of a statement of a general average adjustment in admiralty actions brought to charge the goods liable has been considered and discussed in The Nesco (47 Fed. Rep. [2d] 643). What was there said has little, if any application to the case before us. Here the defendant’s obligation arises from its voluntary agreement, and the extent of the obligation is defined by the same instrument. Where a shipowner, acting for all interested parties, seeks to enforce against one party an obligation created by the rules of admiralty, there may be doubt as to the extent of the shipowner’s power, acting through adjusters, to state or determine the conflicting interests and obligations. With such questions we are not concerned. Where a party expressly assumes a direct obligation to pay, or guarantees payment, to named adjusters of the amount chargeable against specified goods, the manner in which the amount chargeable is to be determined depends solely upon the intention of the parties, as expressed in their agreements read in the light of surrounding circumstances.

The provisions of the bill of lading not only expressly provide, as we have shown, that the shipowner might appoint adjusters in case of general average, but require that before delivery of goods the consignees shall sign a guaranty in regard “ to the contribution which they may be called upon to pay.” The agreement exacted by the shipowner from the consignees as a condition of delivery of the goods provides that each consignee or party interested shall pay in proportion to his interest, “ provided that such losses and expenses shall be stated and apportioned by Messrs. Ragionieri Emilio Rebora and Elia Taraboto, Average Adjusters in Genoa, in accordance with the rules provided in article 32 of the ' Casería ’ bill of lading * * *. We further agree to fully recognize and to satisfy without litigation the findings of such adjustment, not to oppose by any means the adjustment and settlement to be presented by the adjusters in fulfillment of the charge conferred upon them.” Thus unmistakably the consignees expressed their intention that the amount of the contribution charged upon goods consigned to them should be determined finally and conclusively by these plaintiffs acting as adjusters. Otherwise after the delivery of the goods the consignees were under no further obligation to pay anything. Obviously, if the defendant’s promise to guarantee payment of proper charges ” upon the goods insured is'intended to cover this obligation to pay assumed by the consignees when the lien on the goods was released, the findings in the statement or report of the adjusters were not subject to attack.

The defendant does not contend otherwise; nor does it contend that it did not have notice that the consignees were under the bill of lading required to sign and did sign an average agreement ” before the shipowners’ hen on the goods was released. It contends that it had no notice that the average agreement signed by the consignees contained any provision that the charge against the goods would be measured in other manner than that provided by the admiralty law. A multitude of circumstances completely refute that contention. Implication that the average agreement which the shipowner might exact would contain clauses making findings of the adjusters incontestable may be found in the language of the bill of lading itself. Even if such implication were doubtful, the doubt would be removed by other circumstances. The defendant’s promise is, as we have said, made not to the shipowner but to the persons constituted adjusters and trustees under the consignees’ agreement. Perhaps that instrument made them the defendant’s agents in stating the general average. Certainly when the defendant made a promise to these persons, even if it did not then know the terms of the consignees’ agreement, it was bound to inquire as to the capacity of the persons to whom its promise was given, and had at least constructive notice that they were acting not merely as the appointed agents of the shipowner but with greater powers conferred by the other parties interested. Then, too, the defendant’s promise is at least in form a guaranty, though perhaps in effect it may be a primary promise to pay. The defendant had previously insured the goods. For the loss caused to the insured by a general average charge it was liable to the insured. When thereafter it undertook to guarantee payment ” of that charge so that the lien on the goods might be released, the inference is clear that it intended that payment should be made in accordance with the consignees’ obligation. Knowing that the consignees’ obligation was defined by the consignees’ agreement, it was bound by that definition. The ruling of the trial judge that the consignees’ agreement was admissible in evidence was correct. When admitted, the findings in the statement of the adjusters, prepared pursuant to that agreement, were conclusive and preclude further litigation.

If we went back of those findings there might be questions of law deserving of serious consideration as to some of the items entering into them, even though the jury has resolved all questions of fact in favor of the plaintiffs. It is true that the court charged in effect that the statement was open to attack and that the plaintiff took no exception to the charge or to the refusal of the court to charge otherwise. Now we are told that the plaintiff cannot sustain the verdict upon a ground taken from him by the trial judge. The ruling then made became the law of the case.” (Wangler v. Swift, 90 N. Y. 38, 44, 45.) The rule of that case has no application here.

Here we are not asked to reverse a judgment for alleged error of law not raised by exception, nor to sustain a judgment upon a ground taken from ” the plaintiffs by the trial judge,” and which the defendant had no opportunity to controvert. We are asked to reverse for alleged errors of the trial court in submitting to the jury questions of fact which as a matter of law should have been determined in favor of the defendant if the statement of the adjusters was not conclusive. Every question of fact and of law had been exhaustively litigated before that ruling was made. We are not so hampered by ancient rules of procedure that we are compelled to reverse a judgment and grant a new trial upon which as a matter of law the plaintiff would be entitled to the same verdict merely because the trial judge permitted the jury to pass upon issues which in truth are not in the case. We are not-called upon to determine whether as a matter of law the trial judge should have decided that the statement of the adjusters was, in whole or in part, erroneous on its face when, in truth, such errors, if they exist, would not have detracted from the force of the statement as a conclusive decision on all questions submitted to the adjuster.

The defendant further urges that under the authority of the decision of the Supreme Court of the United States in Langnes v. Green (282 U. S. 531) a common-law court of this State was without jurisdiction of the subject-matter of this action. If we are correct in our interpretation of the defendant’s agreement, that decision rendered after the judgment of the Appellate Division has no bearing upon Such an action as this. The action here is brought upon an express agreement. The defendant’s obligation is defined by the language of the instrument. The court was not called upon to enforce the maritime hen or even to determine its lien as a measure of the defendant’s liability. The parties had agreed that the extent of the liability should be determined by the adjusters. The defendant cannot urge that under such a construction the courts of this State are without jurisdiction of the subject-matter.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    In the Matter of Jennie E. Murray, Appellant, against Teachers’ Retirement Board of the City of New York, Respondent.

      (Argued January 5, 1932;
    decided February 9, 1932.)

      Clifton P. Williamson, William H. P. Oliver and James D. Ewing for appellant.
    As a matter of law there was no fraud or misrepresentation on the part of the petitioner. (Farnsworth v. Duffner, 142 U. S. 43; Ochs v. Woods, 221 N. Y. 335; Brackett v. Griswold, 112 N. Y. 454.) The plea of illegality is insufficient in law, and if in issuing the certificate in 1918 the Retirement Board committed error it was not such as to take its act outside its jurisdiction. (Matter of Poucher v. Berry, 249 N. Y. 17; Smith v. Hedges, 223 N. Y. 176; People ex rel. Smith v. Clarke, 174 N. Y. 259; Equitable Trust Co. v. Hamilton, 226 N. Y. 241.) The allegations contained in the answer with respect to alleged fraud and illegality are insufficient as a matter of law. (Riddle v. Bank of Montreal, 145 App. Div. 207; Almirall & Co. v. McClement, 207 App. Div. 320; 239 N. Y. 630; Swift v. Chester Carbon Co., 223 App. Div. 808; Wallace v. Jones, 182 N. Y. 37; Knowles v. City of New York, 176 N. Y. 430; Ochs v. Woods, 221 N. Y. 335.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Willard S. Allen and William E. C. Mayer of counsel), for respondent.
    The petitioner has mistaken her remedy. (Matter of Creveling v. Teachers’ Retirement Board, 255 N. Y. 364; Matter of Mason Co. v. Berry, 254 N. Y. 578; People ex rel. McMackin v. Board of Police, 107 N. Y. 235; Spanhake v. Teachers’ Retirement Board, 224 App. Div. 75; 249 N. Y. 605; Matter of Brooklyn Improvement Co. v. Pounds, 174 App. Div. 448; People ex rel. Rolf v. Coler, 58 App. Div. 131; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390.) The Retirement Board is not estopped by its certificate of 1918. (Nissen v. McCafferty, 202 App. Div. 528; People ex rel. McNulty v. Maxwell, 123 App. Div. 591.) The prior-service certificate issued to the petitioner is not final and conclusive as to the prior service therein allowed. (Matter of Langdon v. Teachers’ Retirement Board, 135 Misc. Rep. 271; 226 App. Div. 870; 252 N. Y. 508; People v. Journal Co., 213 N. Y. 1; People ex rel. Lewis v. Brush, 146 N. Y. 60; People ex rel. Corrigan v. Mayor, 149 N. Y. 215; Matter of Barresi v. Biggs, 203 App. Div. 2; Matter of Davis v. Sexton, 211 App. Div. 233; Matter of Poucher v. Berry, 249 N. Y. 16.)
   Lehman, J.

The petitioner, a teacher in the public schools of the city of New York, became a member of the Teachers Retirement Association on August 1, 1917. In September, 1918, the Teachers’ Retirement Board issued a certificate certifying that the petitioner is entitled to an aggregate credit of 22 years 0 months and 8 days as a prior service allowance on account of all service rendered prior to and including the 16th day of September, 1917.” In June, 1930, the petitioner made written application for retirement on September 9, 1930. Including the period of prior service allowance to which the petitioner was entitled as certified by the Board, the petitioner had served thirty-five years on that date. The Greater New York Charter declares that the certificate issued by the Teachers’ Retirement Board shall be “ final and conclusive ” as to the teacher’s prior service unless modified thereafter. (§ 1092, subd. H; Laws of 1901, ch. 466; amd. Laws of 1917, ch. 303.) The certificate issued to the petitioner has not been modified, and the time in which application might be made for such modification by the Board has long passed. Nevertheless under a claim that petitioner’s prior service is over two years less than stated in the certificate, the Teachers’ Retirement Board refuses to recognize the petitioner’s retirement or to draw a warrant for payment of any retirement allowance or pension to her.

The petitioner’s application for retirement became effective without any action of the defendant Board, if in fact she was entitled to prior service as certified by that Board. (Matter of Creveling v. Teachers’ Retirement Board, 255 N. Y. 364.) Then she would be entitled to payment of her pension or retirement allowance upon warrant drawn by the Board. Its action then would be purely ministerial, and may be compelled by mandamus. The declaration of the statute that the certificate of prior service, issued by the Board almost twelve years prior to the petitioner’s application for retirement, shall be final and conclusive,” may not be disregarded by the Board. Before such certificate of prior service could be given, the teacher was required to file “ a detailed statement of all such service ” and the Board was required to verify such statement as to prior-service.” Decision as to the correct amount then rested with the Board. It made that decision. Now it refuses to give effect to its own decision.

Doubtless the conclusive effect of a decision of an administrative or quasi-judicial board is limited to matters within the jurisdiction of the Board. The statute fixes the nature of the service for which a teacher is entitled to credit. The jurisdiction of the Board is limited to the determination of whether such service has been rendered, and the computation of its equivalent in years. If it exceeds its jurisdiction and includes in its certificate prior service for which there is no warrant in law, then its decision cannot be given the effect of creating rights which are denied by the statute. (Matter of Langdon v. Teachers’ Retirement Board, 252 N. Y. 508.) So, too, if the decision is the result of fraud or collusion. (Osterhoudt v. Rigney, 98 N. Y. 222.) A claimant cannot by mandamus preclude a judicial examination of the merits of the claim when a prior decision is challenged on such grounds. (Matter of Mason Co. v. Berry, 254 N. Y. 578.) It is no answer to an application for an order of mandamus that a prior decision, which under the statute is conclusive, is the result of an error in the determination of questions of fact. (People ex rel. Smith v. Clarke, 174 N. Y. 259.)

In the present case the answer contains nothing more. True, it alleges that in her detailed statement of service ” the petitioner erroneously, falsely and fraudulently ” stated her claim, but it fails to show any fraudulent misrepresentation of fact, or indeed any misrepresentation of anything other than the petitioner’s conclusions and computations which the defendant Board was required to verify before it made its certificate. Indeed, the same officer of the Board who signed the certificate, issued in 1918, is said to have discovered the fraudulent error by a recheck ” in 1930 of the same “ detailed statement ” which according to that certificate had been verified by the Board before the certificate was issued. Except in one trifling particular, that detailed statement ” contained no representation of any period of service in any school which is now claimed to be false. The alleged fraud is said to lie in the petitioner’s failure to disclose that, during some years, the service rendered on the basis of hour, day or session was not the equivalent of a year of service. It was the duty of the Board to make that computation, at least unless the statement filed contained false representations which might conceal the need for such computation. (Cf. Smith v. Hedges, 223 N. Y. 176.) Here there was no concealment of such facts. Indeed, the statement shows that for service rendered by the petitioner during some years she did not claim full allowance on a per annum basis. The defendant Board is the tribunal to which the law had committed verification of the statement, and decision as to the facts. Even if insufficient verification led to erroneous decision on the facts the decision itself still remains final and conclusive.

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

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

Ordered accordingly.