author: Andrews, J.

text:
    In the Matter of the Claim of Demetras Delinousha et al., Respondents, against National Biscuit Company, Appellant. State Industrial Board, Respondent.
    Workmen’s compensation — master and servant — suicide — injury of workman resulting in insanity and suicide — death benefit properly awarded — test to be applied in such cases.
    1. If an injury causes insanity which in turn causes suicide, death benefits may be awarded under the provisions of section 10 of the Workmen’s Compensation Law (Cons. Laws, ch. 67).
    2. The test to be applied in such cases is, that where the suicide is not the result of discouragement, of melancholy or other sane conditions, but of brain derangement caused by the injury, an award may be made. Death is then the proximate and direct result of the accident within the meaning of the statute.

      Matter of Delinousha v. Nat. Biscuit Co., 221 App. Div. 827, affirmed.
    (Argued March 27, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 7, 1927, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law.

      Charles A. Vilas for appellant.
    It should be found as a matter of law that the death of Sterio Delinousha did not result from the injury arising out of or in the course of his employment, but was solely occasioned by his willful intention to bring about the death of himself. (Matter of Alpert v. Powers, 223 N. Y. 97; Stillwagen v. Callan Bros., Inc., 183 App. Div. 141; Daniels v. N. Y., N. H. & H. R. R. Co., 183 Mass. 393; Long v. Omaha & C. B. Street Ry. Co., 108 Neb. 342; Brown v. American Steel & Wire Co., 43 Ind. App. 560; Withers v. London, B. & S. C. R. R. Co., [1916] K. B. 772; Salsedo v. Palmer, 278 Fed. Rep. 92; Churchill v. United Fruit Co., 294 Fed. Rep. 400; Upham Case, 245 Mass. 31.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondent.
    The deceased employee committed suicide resulting from an uncontrollable impulse and without conscious volition to produce death, as the result of the accident which he had sustained. (Beckwith v. Bastian Bros., 13 St. Dept. Rep. 538; 181 App. Div. 909; Kovel v. Acorn Manufacturing Co., 206 App. Div. 807; Sundbye v. Martenson Wood Working Co., 206 App. Div. 809; Whispell v. General Electric Co., 208 App. Div. 824; Scherer v. Bott Furniture Co., 214 App. Div. 843; Withers v. London, Brighton & Southcoast Ry. Co., 9 B. W. C. C. 616; Marriott v. Maltby Main Colliery Co., Ltd., 13 B. W. C. C. 353; Jenkins v. Lancasters Steam Coal Collieries, 16 B. W. C. C. 11; Sponatski’s Case, 220 Mass. 526.)
   Andrews, J.

Coneededly if an injury causes insanity which in turn causes suicide, death benefits may be awarded under the provisions of section 10 of the Workmen’s Compensation Law (Cons. Laws, ch. 67). Here the finding is to the effect that the injury suffered by the deceased caused him to develop and suffer from a psychosis ” which caused him to commit suicide, his death being naturally and unavoidably the result of the injuries which he sustained ” and that it resulted from an uncontrollable impulse and without conscious volition to produce death.” As there is some evidence to justify this finding, we would content ourselves with affirming without opinion were it not for the test as to the meaning of the word insanity ” to be applied in such cases, as stated by the Appel1 ate Division upon an earlier appeal.

It may be said safely that insanity is a symptom of some functional derangement of tissues of the brain. As this derangement is more or less deep seated, so the resulting symptoms are more or less profound. The legal effect differs under varying circumstances. Insanity for one purpose may not be insanity for another. The defendant is guilty of crime if he knows the nature and quality of the act he commits and knows that it is wrong. A testator may make a will if he has capacity to comprehend the condition of his property, his relation to those who would, or should or might be the natural objects of his bounty, and the scope and bearing of its provisions. A contract may be avoided only if a party is so affected as to be unable to see things in their true relations and to form correct conclusions in regard thereto. A policy of insurance, excepting death by suicide, may be enforced, if the insured kills himself while insane. Here, however, there is no agreement as to the precise meaning of the word — the extent of the mental deficiency which it connotes. In some courts it means inability to recognize the physical nature of the act. (Cooper v. Mass. Mut. Life Ins. Co., 102 Mass. 227.) In others unconsciousness that the act will cause death, or the presence of an irresistible insane impulse. (Van Zandt v. Mutual Benefit Life Ins. Co., 55 N. Y. 169.) Still elsewhere such an impairment of reason, that while the act is intentional and voluntary, the insured still does not understand its moral quality and its general nature or effect, or where an irresistible impulse is present. (Connecticut Life Ins. Co. v. Akens, 150 U. S. 468.) And again the absence of criminal intent — of an evil motive. (Eastabrook v. Union Mut. Life Ins. Co., 54 Me. 224.)

The New York rule, a compromise between the two extreme views, and formulated in the Van Zandt Case (55 N. Y. 169), has been followed here. (Newton v. Mutual Benefit Life Ins. Co., 76 N. Y. 426; Penfold v. Universal Life Ins. Co., 85 N. Y. 317; Meacham v. N. Y. State Mut. B. Ass’n, 120 N. Y. 237.) In Newton v. Mutual Benefit Life Ins. Co., Judge Rapallo restates it. If, he says, the insured acted under the control of an insane impulse caused by disease, and derangement of his intellect, which deprived him of the capacity of governing his own conduct in accordance with reason,” the suicide is not a voluntary act.

While helpful, the decisions as to insurance policies are not strictly analogous to claims arising under the Workmen’s Compensation Law. The courts there are attempting to decide the meaning of an ambiguous clause in a contract. What was the intent of the parties. But here we deal with a statute intended to redress the incidence of that economic loss 'inevitable in industry. It is to be construed liberally. Death benefits are allowed if the injury results naturally and unavoidably in disease and the disease causes death. This is so if the injury causes insanity from gangrenous poisoning or otherwise, and the insanity directly causes suicide — in other words, if the suicide is not the result of discouragement, of melancholy, of other sane conditions, but of brain derangement. If that is the cause an award may be made. Death is then the proximite and direct result of the accident within the meaning of the statute.

The order appealed from should be affirmed, with costs.

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

Order affirmed.


source: Caselaw Access Project

author: Lehman, J. Crane, J. Andrews, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Grand Trunk Railway Company of Canada, Appellant, v. John F. Gilchrist et al., Constituting the State Tax Commission, Respondent.
    Tax — franchise tax — railroads — bridges — operation of railroad on bridge over navigable stream under authorized grant by bridge companies not a special franchise — assessment upon right to operate railroad over bridge set aside — permission of State that relator operate its railroad within State confers no special franchise — consent of State to use of bridge for operation of railroad part of privilege granted to bridge company.
    1. A right derived from the State to operate a railroad above a navigable stream is a special franchise which may be taxed, but operation of a railroad on a bridge over a navigable stream, not under a permission or authority granted by the State to the railroad company but under a right or permission granted to it by the bridge companies, acting under authority derived from the State, is not a special franchise within the meaning of the Tax Law and an assessment placed upon the right to so operate its railroad must be set aside.
    2. An argument that the relator may not claim that its operation of a railroad on the bridge is not derived from permission of the State, since without permission to exercise its corporate powers within the State its operation would be illegal, disregards the distinction between a general franchise and a special franchise. A mere permission of the State to the relator to operate its railroad within the State in itself confers no special right or privilege to encroach upon the rights of the public in a highway or public place, and though the State has consented to the use of the bridge for operation of a railroad, that consent is part of the privilege granted to the bridge company for the construction of a bridge to be used for that purpose. The railroad company has received no rights from the State except the right to exercise its corporate powers.

      People ex rel. Grand Trunk Ry. Co. v. Gilchrist, 221 App. Div. 19, reversed.
    (Argued February 21, 1928;
    decided May 1, 1928.)

      Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 4, 1927, which reversed an order of Special Term vacating a franchise tax assessment and reinstated and confirmed said assessment.

      S. Fay Carr for appellant.
    Appellant’s sole right, authority or permission to cross the Niagara river is derived from its agreements with the companies owning the bridge across the Niagara river. (People ex rel. Met. Street Ry. Co. v. Tax Comm., 174 N. Y. 417; Schinzel v. Best, 45 Misc. Rep. 455; 109 App. Div. 917; Matter of New York Rys. Co., 172 App. Div. 128; People ex rel. Interborough, Rapid Transit Co. v. Tax Comm., 126 App. Div. 610; 195 N. Y. 618; People ex rel. Niagara Falls Internal Bridge Co. v. Tax Comm., 103 Misc. Rep. 648; People ex rel. Mayor, etc., of New York v. Assessors, 111 N. Y. 505; Niagara Falls Internal. Bridge Co. v. Grand Trunk Ry. Co., 212 App. Div. 705; 241 N. Y. 85.) Appellant’s right to operate trains across the Niagara river on the bridge owned by the bridge companies does not proceed from any authority to carry on ordinary railroad transportation business within the State of New York. (People ex rel. Met. Street Ry. Co. v. Tax Comm., 174 N. Y. 417; People ex rel. N. Y. C. R. R. Co. v. Woodbury, 203 N. Y. 167; People ex rel. Long Island R. R. Co. v. Tax Comm., 148 App. Div. 751; 207 N. Y. 683; Niagara Falls Internal. Bridge Co. v. Grand Trunk Ry. Co., 212 App. Div. 705 ; 241 N. Y. 85.)

      Albert Ottinger, Attorney-General (Frederic J. Merriman and Alexander L. Saul of counsel), for respondents.
    The right to construct, maintain and operate a railroad over a navigable river, including the value of the tangible property used in connection therewith, constitutes a special franchise. (People ex rel. H. R. & P. C. R. R. Co. v. State Board, 215 N. Y. 507; People ex rel. N. Y.C. R. R. Co. v. Tax Comm., 239 N. Y. 183; People ex rel.

      East River T. R. R. Co. v. Tax Comm., 160 App. Div. 771.) The relator in constructing, maintaining and operating a railroad over and above a navigable river exercises that kind of a right, authority or permission in connection with the ownership of physical property, defined in article 1, section 2, subdivision 6, of the Tax Law as a special franchise. (People ex rel. Internat. Bridge Co. v. Tax Comm., 239 N. Y. 631; People ex rel. N. Y. C. R. R. Co. v. Woodbury, 203 N. Y. 167; N. Y., L. & W. R. R. Co. v. Roll, 32 Misc. Rep. 321.)
   Lehman, J.

The relator, Grand Trunk Railway Company of Canada, is a railroad corporation organized under the laws of the Dominion of Canada. It maintains and operates a railroad which crosses the Niagara river upon a bridge which was constructed by Niagara Falls Suspension Bridge Company, a Canadian corporation, and Niagara Falls International Bridge Company, a New York corporation.

The Niagara river is a navigable stream forming part of the boundary between the United States and Canada. The State of New York might grant or withhold the privilege or right to construct, maintain and operate a bridge or other crossing above a navigable stream within its own territory. The right to construct a bridge across a navigable boundary stream could be granted only by the action of both abutting sovereignties. The State of New York, by the law which created the Niagara Falls International Bridge Company (Laws of 1846, chap. 104), granted to that corporation the right to construct and operate a bridge across the Niagara river. In association with the Canadian corporation, which had received similar powers in its domicile, Niagara Falls International Bridge Company constructed the bridge. The upper floor of the bridge was designed to pass railroad trains with locomotives, and the lower floor was designed for carriages, for pedestrians and for animals.

The two bridge companies had no power to maintain or operate a railroad across the bridge, or that part of it lying within the State of New York; but by chapter 622 of the Laws of 1853 the Niagara Falls International Bridge Company was given full power and authority, by itself or in union with the Niagara Falls Suspension Bridge Company of Canada West, to enter into any contract or agreement with any individual, railroad company or railroad companies, with reference to the terms of crossing locomotives and cars, passengers and freight over said railroad bridge, and the construction, repairs, insurance and maintenance of the same, upon such terms and conditions, and for such time or times, as may be agreed upon by and between the parties. Accordingly in October, 1853, the two bridge companies jointly agreed with the Great Western Railway Company in Canada West, the predecessor in title and interest of the relator, to lease to said company the railroad floor and structure.

Since that time the bridge has from time to time been altered and reconstructed, and other agreements have been made between the bridge companies and the relator or its predecessor in title. The relator still occupies the railroad floor of the bridge under lease from the bridge companies. Under the terms of the contract it is provided that the Grand Trunk shall be entitled to all rails, guard rails, ties, tie plates, spacers, expansion joints, tracks and other track equipment now or hereafter placed upon the upper floor of the said bridge and approaches, and the same shall remain the property of the Grand Trunk.” The relator operates its railroad within the State of New York from a point on the bridge, above the boundary line of the State, to the Lehigh Valley railroad passenger station located about three hundred yards easterly from the easterly end of the bridge structure. A special franchise tax assessment, which the relator now attacks, has been placed upon the franchise right or permission of the relator to construct, maintain or operate its railroad above the Niagara Biver.”

A right derived from the State to operate a railroad above a navigable stream is unquestionably a special franchise. The State in such case has granted a special privilege in a highway or public place which is not enjoyed by all the people of the State. Such a right, permission or privilege may be taxed. (Tax Law [Cons. Laws, ch. 60], section 2; People ex rel. H. R. & P. C. R. R. Co. v. Tax Commissioners, 215 N. Y. 507; People ex rel. Metropolitan Street Railway Co. v. Tax Commissioners, 174 N. Y. 417.) The relator in this case operates its railroad on a bridge over the Niagara river, not under a permission or authority granted by the State to it, but under a right or permission granted to it by the bridge companies acting under authority derived from the State. The question is whether right or permission so derived is a special franchise within the meaning of the Tax Law.

A railroad corporation may not exercise its corporate powers within this State, except by permission or authority of the State. The lease by the bridge companies to the relator of the railroad floor of the bridge could not confer upon the relator any corporate power to operate its railroad within the State. It is said that the railroad company may not claim that its right to operate a railroad on the bridge is not derived from permission of the State, since without such permission its operation would be illegal. That argument disregards the distinction between a general franchise and a special franchise.

The general franchise of a corporation is its right to live and do business by the exercise of the corporate powers granted by the state. When a right of way over a public street is granted to such corporation, with leave to construct and operate a street railroad thereon, the privilege is known as a special franchise, or the right to do something * * * which, except for the grant, would be a trespass.” (People ex rel. H. R. & P. C. R. R. Co. v. Tax Commissioners, 215 N. Y. 507.) A mere permission of the State to the relator to operate its railroad within the State in itself confers upon the relator no special right or privilege to encroach upon the rights of the public in a highway or public place. At most it is equivalent to a general franchise. Without lease or permission from the bridge companies, the relator’s operation of its railroad on the bridge over the Niagara river would constitute a trespass even though the State had expressly conferred a corporate power upon the relator to construct a railroad across public places and waters. After the relator acquired from the bridge companies the right or privilege to place its tracks upon the bridge, the operation by the relator was legal without further grant or authority from the State, except permission to exercise its general corporate powers within the State. Unless we find, therefore, that the permission or privilege derived from the contract made with the bridge companies constitutes a special franchise within the definition of the Tax Law, the assessment must be set aside.

If the exercise by the relator of its corporate franchises in a public place is not based upon authority granted by the State; if it does not rest upon public favor rather than private right, the relator enjoys no special franchise. (People ex rel. N. Y. Central R. R. Company v. Woodbury, 203 N. Y. 167; People ex rel. N. Y. C. & H. R. R. R. Company v. Priest, 206 N. Y. 274; People ex rel. Hudson & M. R. R. v. Tax Comrs., 203 N. Y. 119; People ex rel. Long Island R. R. v. Tax Comrs., 148 App. Div. 751; affd., on opinion below, 207 N. Y. 683.) The State granted to the Niagara Falls International Bridge Company the authority to construct a bridge across the Niagara river and to enter into a contract with a railroad company or companies for the operation of a railroad. The bridge company was not authorized to operate a railroad across its bridge, but it was given the right to grant such privilege to another for its own profit. The right of the bridge company to construct a bridge over a navigable river and to contract for its own profit with a railroad company for the operation of a railroad across the bridge, is a special privilege or right granted by the State to do an act on public property which would otherwise be illegal, even though it may be that the right or privilege granted to the bridge company is not taxable at the present time as a special franchise because it does not fall strictly within the legislative definition of section 2 of the Tax Law. The question is not here presented whether the Legislature might not amend its definition of a taxable special franchise so as to include all the rights conferred upon the bridge company. If the State taxed as a special franchise the rights granted by it to the bridge company, it would hardly be claimed that the right of the railroad company to operate a railroad on the bridge constituted another special franchise.

By statute, the Legislature has fixed the conditions trader which the bridge might be constructed and the purposes for which it might be used. The operation of the railroad over the bridge is in accordance with the authority granted by the State to the bridge company. From such operation the bridge company realizes some of the profits derived from the privilege created by the State. After the bridge was constructed upon the conditions fixed by the State, the bridge company, and not the State, could grant or withhold permission to use the bridge for railroad operation. The' State did not and could not thereafter grant to another a special franchise which involved a use of the bridge. The State did not intrust to the bridge company power in its discretion to confer upon a railroad company the consent of the State to the operation of a railroad across the Niagara river. It conferred upon the bridge company the right to build the bridge and to grant the use of it for railroad purposes to a railroad corporation. The bridge company’s privileges are derived from the State. It is entitled to the benefit from the authorized use of a public place. The railroad’s rights are derived from grant of the bridge company upon stipulated payment to that company.

Though the State has consented to the use of the bridge for operation of a railroad, that consent is part of the privilege granted to the bridge company for the construction of a bridge to be used for that purpose. The railroad company has received no rights from the State except the right to exercise its corporate powers. Since it has received no per ission from the State to operate a railroad over the Niagara river, its rights, derived from the bridge company by virtue of the privilege granted to the bridge company, constitute no special franchise.

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

Crane, J.

(dissenting). I dissent. If the State had granted to the railroad directly consent to operate its road over the bridge and river it would have been a special franchise. The railroad cannot cross without such consent. The source of authority is the State. The railroad has obtained such consent indirectly through the bridge company, and I can see no difference between the consent thus obtained and the consent directly given to the railroad by the State. The railroad runs over the river on a bridge by consent and authority of the State in either case. As it must pay a franchise tax in the one instance, why not in the other?

Andrews, J.

(dissenting). A special franchise is defined as the franchise, right or permission to construct, maintain or operate a railroad above a public place. The Niagara river is such a public place. The relator maintains and operates a railroad above it.

Does it do so by reason of authority granted by the State where without such authority such action would be illegal? (People ex rel. N. Y. C. & H. R. R. R. Co. v. Priest, 206 N. Y. 274.) Does it do so by public favor? (People ex rel. N. Y. C. R. R. Co. v. Woodbury, 203 N. Y. 167.) If it does not, there is no special franchise. (People ex rel. Hudson & M. R. R. v. Tax Comrs., 203 N. Y. 119; People ex rel. Long Island R. R. v. Tax Comrs., 148 App. Div. 751; affd., on opinion below, 207 N. Y. 683.)

Chapter 104 of the Laws of 1846 incorporated the Niagara Falls International Bridge Company, authorized it to purchase or condemn necessary lands on this side of the boundary line and to build a toll bridge across the river for pedestrians and vehicles. A similar act was passed in Canada and the bridge has been built and operated for many years. Under the present definition of the statute this did not confer a special franchise. It is not the right, the authority or the permission specified in section 2 of the Tax Law.

By chapter 622 of the Laws of 1853, however, the corporation was empowered to contract with a railroad corporation with reference to terms upon which the latter might operate trains over the bridge. This statute impliedly authorized the bridge company to so construct the bridge as to be suitable for that purpose. In pursuance of this act the corporation built an upper deck to accommodate engines and trains.

I do not think this act conferred a special franchise upon the bridge company. The words of the statute are permission to “ construct, maintain or operate ” railroads over a public place. Certainly the corporation was never authorized to ■ operate a railroad itself across the river. Probably it might lay rails on the structure. That may be implied from the fact that it was to build a railroad bridge. But I do not think the mere placing of rails thereon comes fairly within the meaning of the phrase “ construct * * * railroads.” It never, therefore, itself obtained a special franchise, but it might grant the right to maintain and operate railroads across the bridge to others. It did so in October, 1853. It then leased to the Great Western Company of Canada the upper deck for the passage of trains and locomotives. The relator stands in the place of the original lessee.

As an original proposition the relator might not have constructed and operated a railroad bridge across the Niagara river without permission from the State. Had such permission been granted to it there would be a special franchise — permission to construct and operate a railroad above a public place. (People ex rel. H. R. & P. C. R. R. Co. v. Tax Comrs., 215 N. Y. 507.) It seems to me that this is precisely what the act of 1853 did by implication. It said, you may lease to some railroad and give it permission to operate its trains over your bridge. The lease will evidence our consent that it may do so.” Consent of the State was required. It need not be express. It is no defense where a railroad crosses a highway that consent has never in fact been given.

I have said consent of the State is required. It is even more requisite here than in the ordinary case where the State is practically a trustee for the public. Here its proprietary rights are also involved. If not given, not only does the structure constitute a continuing trespass, but every person crossing the river upon it would be a trespasser.

It seems to me that unless the State has granted permission to the relator to maintain and operate a railroad over a public place the only alternative is to hold that it has granted such permission to the bridge company, and that the latter is exercising such rights through its lessee as agent. Such a holding would not accord with the facts. Some one has permission from the State. Who? I think the relator.

That its right may be terminated for non-payment of rent, that the method of its operation is controlled by the lease, both facts seem to me immaterial. Meanwhile it does operate a railroad over a public place by consent.

I think that the judgment of the court below was right and should be affirmed.

Cardozo, Ch. J., Pound and Kellogg, JJ., concur with Lehman, J.; Crane and Andrews, JJ., dissent in opinions, in which O’Brien, J., concurs.

Ordered accordingly.


author: Lehman, J.

text:
    Lena Clark, as Administratrix of Frederick E. Clark, Deceased, Respondent, v. Monarch Engineering Company, Appellant.
    Negligence — workmen's compensation ■— master and servant — general contractors required to pay compensation only where subcontractor has failed to do so ■— general contractor must plead and prove his liability under Workmen’s Compensation Law to escape co mmon-law liability for negligence.
    1. Section 56 of the Workmen’s Compensation Law (Cons. Laws, ch. 67), imposing liability to pay compensation upon general contractors, still' leaves the liability to secure and pay or provide compensation to an injured employee or his defendants primarily upon the subcontractor who employes him. It places a secondary liability to pay-compensation upon the general contractor only where the subcontractor has not fully met his primary liability.
    2. Where, therefore, in an action against a general contractor to recover for the death of an employee of a subcontractor, through an accident occurring during the erection of a building, the defendant contends that he is relieved of common-law liability because the statute has imposed upon him the liability to provide compensation in its place and stead, he should be required to plead and prove that he is in fact under the statutory liability. The Legislature did not intend to provide exemption to the general contractor from common-law liability, where no statutory liability is shown to have arisen.

      Clark v. Monarch Engineering Co., 222 App. Div. 713, affirmed.
    (Argued March 28, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered. November 7, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      George P. Keating, Ray M. Stanley and Seward H. Millener for appellant.
    Plaintiff’s intestate had a right of recourse against the defendant for compensation under the Workmen’s Compensation Law. The existence of such a right under the act bars an action at common law. (Ives v. South Buffalo Ry. Co., 201 N. Y. 271; Miller v. North Hudson Contr. Co., 166 App. Div. 348; Casey v. Shane Constr. Co., 221 App. Div. 660; Shanahan v. Monarch Engineering Co., 219 N. Y. 469; Carstens v. Pillsbury, 172 Cal. 572; DeWitt v. State, 108 Ohio St. 513; Pacific G. & E. Co. v. Industrial Acc. Comm., 180 Cal. 497; Worswick Co. v. Industrial Acc. Comm., 181 Cal. 550; Jensen v. South Pacific Co., 215 N. Y. 514.)

      Karl A. McCormick and Frederick G. Bagley for respondent.
    Plaintiff’s intestate had no right of recourse against the defendant for compensation under the Workmen’s Compensation Law and that act is not a bar to this action. (Cohen v. Neustadter, 247 N. Y. 207; Monello v. Klein, 216 App. Div. 105; Cermak v. Milwaukee Air Power Pump Co., 192 Wis. 44; Trumbull Cliffs Furnace Co. v. Schachovsky, 111 Ohio St. 791; Ives v. South Buffalo Ry. Co., 201 N. Y. 303; King v. N. Y. C. R. R. Co., 66 N. Y. 181; Arc. F. Ins. Co. v. Austin, 69 N. Y. 470; Hexamer v. Webb, 101 N. Y. 377; Beach v. Velzy, 238 N. Y. 101; Matter of Zirpola v. Casselman, 237 N. Y. 367; Matter of Taylor, 114 App. Div. 634; Warren v. Morse Dry Dock & Repair Co., 235 N. Y. 445.)
   Lehman, J.

The plaintiff has recovered a judgment against the defendant for damages resulting from the, death of plaintiff’s husband caused by the alleged negli-. gence of the defendant. At the time of the accident the, plaintiff’s husband was performing work, as an employee, of a subcontractor, in the construction of a building. The defendant was the general contractor, Upon this, appeal the defendant directs its attack upon the judgment on the ground that the liability imposed upon a general contractor under section 56 of the Workmen’s Compensation Law (Cons. Laws, ch. 67) is “ exclusive and in place of any other liability whatsoever.” (Workmen’s Compensation Law, section 11.)

Section 10 of the Workmen’s Compensation Law provides: “ Liability for compensation. Every employer subject to this chapter shall * * * secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment * * Section 11 provides: “Alternative remedy. The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsover * * By force of these provisions a two-fold liability was imposed upon an employer subject to the Workmen’s Compensation Law. He must “ secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment.” Such an employer who has secured compensation is not subject to any other liability.

There can be no doubt that when these sections were enacted “ an employer subject to this chapter ” included only a general or special “ employer ” as that term is generally understood and defined in our law. A contractual relation with the employee is involved. Here the workman who sustained injury resulting in his death was employed by a subcontractor. It is not claimed that the general contractor either hired or had the right to direct him. Concededly section 10 of the Workmen’s Compensation Law imposed no obligation or liability upon a general contractor in favor of the employees of a subcontractor.

Section 56 of the Workmen’s Compensation Law enacted in 1922, did impose a liability theretofore unknown in our law upon a general contractor. That section provides: “ Subcontractors. A contractor, the subject of whose contract is, involves or includes a hazardous employment, who subcontracts all or any part of such contract shall be hable for and shall pay compensation to any employee injured whose injury arises out of and in the course of such hazardous employment, unless the subcontractor primarily liable therefor has secured compensation for such employee so injured as provided in this chapter.” That section still leaves liability to secure and pay or provide condensation to an injured employee or his dependents primarily upon the subcontractor who employed him. It places, hovever, a secondary liability to pay compensation ipon the general contractor unless the subcontractor has fully n et his prin ary liability. The defendant- main tains that this new and secondary liability of the general contractor is exclusive and destroys any common-law right of action for negligence or wrong which might other vise exist.

If the Legislature intended that such secondary liability should be exclusive it has not expressed that intent, as it might have done, in clear terms. We are asked to apply the provisions of section 11 of the Workmen’s Compensation Law to the new liability created by section 56 of the law, though in terms section 11 applies only to “ the liability * * * prescribed by the last preceding section.” Arguments in favor of such an extension of the provisions of section 11 of the Workmen’s Compensation Law are not without some force. Other States have enacted workmen’s compensation laws which, like our own, impose some liability on a general contractor for injuries to the employees of subcontractors. In some jurisdictions the courts have held that the liability imposed by statute upon the general contractor is exclusive and in place of any common-law liability for wrong or negligence. (Maryland v. Bennett Building Co., 154 Md. 159; Bindbeutel v. Willcutt & Sons Co., 244 Mass. 195.) The courts in other jurisdictions have not always reached the same conclusion. (Trumbull Cliffs Furnace Co. v. Schachovsky, 111 Ohio St. 791; Cermak v. Milwaukee A. P. P. Co., 192 Wis. 44.) We do not analyze these decisions; for in each case the decision arrived at must finally depend upon the construction which the courts place upon the language of the particular statute or clause of the Constitution under consideration and the statutes and Constitutions of other States are not identical with our own.

The question before us is indeed narrower than that which counsel in this case have argued. The liability imposed by section 10 upon every employer ” is primary and absolute. The liability imposed upon a general contractor is secondary and contingent. Where the subcontractor has secured compensation for his employees, a general contractor is under no statutory liability. Section 56 has no application in such case. Here there is neither plea nor proof by the defendant that the subcontractor failed to secure compensation. The question before us is not whether a general contractor who is under a liability to pay statutory compensation to an employee,” because the subcontractor primarily liable therefor has failed to secure compensation, is also subject to common-law liability for negligence or wrong. The question is whether the common-law liability ho longer exists even though it does not appear that the general contractor in this particular case is under any statutory liability. We consider at this time no other question.

It is true that the language of section 56 may indicate that when claim to compensation is asserted by an employee against a general contractor, the burden of showing that the subcontractor primarily liable had secured compensation is thrown upon the general contractor. (Monello v. Klein, 216 App. Div. 105; Casey v. Shane, 221 App. Div. 660.) We do not pass upon such question now. Where, however, the general contractor asserts that he is relieved of a common-law liability because the statute has imposed upon him a new liability in its place and stead, he should at least plead and prove that he is in fact under the statutory liability. (Trumbull Cliffs Furnace Co. v. Schachlovsky, supra; Cermak v. Milwaukee A. P. P. Co., supra.) Caution may dictate to a general contractor that he should insure himself against a contingency that, by reason of the failure of the subcontractor to secure compensation, liability against the general contractor may arise; yet until that contingency arises the general contractor is under no statutory liability to an employee of the subcontractor. He must respond only for damages caused by his own negligence or wrong. It seems to us quite clear that the Legislature did not intend to provide exemption to the general contractor from common-law liability, at least where no statutory liability is shown to have arisen. We do not decide whether a statutory liability, when it arises, may exist contemporaneously with a common-law liability.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Kellogg, J.

text:
    Edgar C. Farrington, Respondent, v. The State of New York, Appellant.
    Constitutional law — State — statute authorizing Court of Claims to make award to illegally dismissed State employee for his expense in obtaining reinstatement, constitutional.
    Chapter 716 of the Laws of 1927, authorizing the Court of Claims, if it find that plaintiff herein was illegally discharged from his position in the office of the State Comptroller and reinstated by legal proceedings, to make an award and render judgment against the State for bis counsel fees, expenses and disbursements incurred in securing such reinstatement, is constitutional. It was well within the power of the Legislature to declare that the State was morally obligated to make requital for the financial loss occasioned claimant by his illegal discharge. (Matter of Chapman v. City of New York, 168 N. Y. 80; Matter of Jensen, 44 App. Div. 509, distinguished.)

      Farrington v. State, Ct. of Cl. Feb. 7, 1928, affirmed.
    (Argued March 30, 1928;
    decided May 1, 1928.)
    Appeal from a judgment of the Court of Claims, entered February 7, 1928, awarding to claimant the amount of a claim filed pursuant to chapter 717 of the Laws of 1927, the constitutionality of which statute is the only question presented on appeal.

      Albert Ottinger, Attorney-General (Frederick D. Colson of counsel), for appellant.
    The claim herein does not constitute either a legal claim or a moral obligation against the State of New York. (People v. Westchester County Nat. Bank, 231 N. Y. 465; Munro v. State, 223 N. Y. 208; Matter of Borup, 182 N. Y. 222; Trustees Exempt Firemen's Benev. Fund v. Roome, 93 N. Y. 313; Matter of Chapman v. City of New York, 168 N. Y. 80; Matter of Jensen, 28 Misc. Rep. 379; 44 App. Div. 509; Schieffelin v. Henry, 123 Misc. Rep. 792; 215 App. Div. 706; 242 N. Y. 581.) The enabling act under which the claim herein is filed, namely, chapter 716 of the Laws of 1927, is unconstitutional. (Munro v. State, 223 N. Y. 208; Lehigh Valley R. R. Co. v. Canal Board, 204 N. Y. 471; People v. Westchester County Nat. Bank, 231 N. Y. 465.)

      Glenn A. Frank for respondent.
    Chapter 716 of the Laws of 1927 is constitutional. (People v. Westchester County Nat. Bank, 231 N. Y. 465; Williamsburg Savings Bank v. State, 243 N. Y. 241; Carr v. State, 231 N. Y. 464; Roberts v. State, 160 N. Y. 217; Babcock v. State, 190 App. Div. 159; 231 N. Y. 560.)
   Kellogg, J.

The claimant was one of five persons who held positions as detective agents in the office of the Comptroller of the State. The positions were in the competitive class of the civil service. In the year 1923 the Legislature appropriated moneys to pay for the services of not more than three of such agents. It, therefore, became necessary for the Comptroller to abolish two of the positions. It was then the law that, whenever a position in the competitive class of the civil service was abolished, the occupant should be suspended without pay; and that such suspension should be made in the inverse order of the original appointments to the service. (Civil Service Law [Cons. Laws, ch. 7], sec. 22-a, added by ch. 836, Laws of 1920; amended by ch. 875, Laws of 1923, and repealed by ch. 685, see. 4, Laws of 1926.) Of the five detective agents, the claimant was the third in order of appointment. Nevertheless, the Comptroller notified the claimant that his position was abolished and that his services were no longer required. Thereafter the claimant instituted mandamus proceedings and procured his reinstatement, as well as all arrears of salary owing him for the period of his apparent suspension. For counsel fees and disbursements in the legal proceedings made necessary by the unlawful act of the Comptroller the claimant expended the sum of $1,055. Thereafter the Legislature passed an act conferring jurisdiction upon the Court of Claims to hear and determine claimant’s claim to recover the moneys thus expended. (Laws of 1927, ch. 716.) The act provided that if the court shall find that the said Edgar C. Farrington was lawfully appointed to and held the position of detective agent in the office of the Comptroller of the State of New York, and was illegally dismissed or removed from that position to which he was reinstated by an action at law, the State of New York shall be deemed liable for his counsel fees, expenses and disbursements made and incurred in securing such reinstatement ” and that, in such event, the court shall make an award and render judgment against the State of New York, and in favor of the said Edgar C. Farrington, for the counsel fees, expenses and disbursements made and incurred in securing such reinstatement and unpaid salary.” The Court of Claims subsequently heard the claim, found the facts to have been as stated in the act, determined that the claimant’s reasonable expenses had been the sum of $1,055, and made an award to claimant for that amount.

The Legislature may not sanction a mere gift of public moneys for private purposes. (Const, art. VIII, sec. 9; Lehigh Valley R. R. Co. v. Canal Board, 204 N. Y. 471; People v. Westchester County National Bank, 231 N. Y. 465.) Nevertheless, it may, in certain instances, acknowledge the justice of a private claim against the State, and provide for its audit and allowance by the Court of Claims. (Cole v. State, 102 N. Y. 48; O’Hara v. State, 112 N. Y. 146; Munro v. State, 223 N. Y. 208.) If it act with power in reference to a particular claim, the propriety of its action is not subject to court review. (Sherlock v. State, 198 App. Div. 494; affd., 235 N. Y. 515; Williamsburgh Savings Bank v. State, 243 N. Y. 231.) However, it may not, under the cloak of recognizing and satisfying a debt of honor, in fact bestow a charity. Preliminarily, therefore, in the case of every enactment sanctioning the allowance of a private claim, there arises a question of legislative power which must be determined by the courts. It must appear to the judicial mind and conscience that the particular claim belongs to a class concerning which the Legislature, in the exercise of a wide discretion, might reasonably say that they are founded in equity and justice and involve a moral obligation on the part of the State which it should satisfy. Otherwise, the enactment is an unconstitutional exercise of legislative power. (Lehigh Valley R. R. Co. v. Canal Board, supra; Babcock v. State, 190 App. Div. 147; affd., 231 N. Y. 560.) In the light of these principles, which have become legal commonplaces, was the enactment in question a constitutional act?

Instances in which enactments, authorizing the allowance of private claims, have been held to be constitutional, since it might reasonably be said that the sanctioned claims involved moral obligations, have been subject to classification under two heads. The first are claims involving benefits conferred by private persons upon the State which the State has continued to enjoy without the return of a quid quo pro. The second are claims involving injuries and damages wrongfully inflicted upon individuals by those in the State service or others for whose acts the State might justly be» regarded as responsible. (People v. Westchester County National Bank, supra.) Our «claim, if belonging to either class, falls under the second head. It is grounded upon a legal wrong inflicted by one of the chief officers of the State upon the claimant, a public servant of the -State. It is not material that the wrong did not involve the infliction of physical violence. It is not material that the damage inflicted might not have been recoverable in a suit at law against an employer occupying a similar relation to the parties as did the State. Special enactments authorizing the allowance of private claims against the State are not required for the purpose of removing the State’s immunity from suit. The provisions of section 264 of the Code of Civil Procedure, now incorporated within the provisions of section 12 of the Court of Claims Act, long ago established a universal waiver of such immunity, in all cases prosecuted before the Court of Claims. (Quayle v. State, 192 N. Y. 47; People ex rel. Swift v. Luce, 204 N. Y. 478.) All claims presenting a question of legal liability were thereby rendered cognizable and enforcible. (Same eases.) It is only in instances where the principle of liability sought to be enforced is extra-legal that a special enactment is requisite to establish it as a principle of recovery. (Sherlock v. State, supra.) In Munro v. State (supra) an inmate of an insane asylum maintained by the State brutally assaulted a keeper and grievously wounded him. An enactment, acknowledging a moral obligation on the part of the State to make compensation for the injuries sustained, and authorizing a recovery on the part of the keeper, was held to be constitutional. In that case an employer, occupying a relationship to the parties similar to that occupied by the State, would not have been liable. The obligation was mdral, not legal. In Babcock v. State (supra) a State surveyor, suspended by a rope from the side of a steep cliff, was precipitated to the ground far below when thé rope broke, and sustained serious injuries from his fall. The accident was due to the fault of a fellow-servant in supplying to the surveyor a defective rope. The case was, therefore, not one which would have made liable an individual employer. Nevertheless it was held that an enactment which recognized the justice of the claim and authorized its allowance was constitutional. In this matter of legislative power, therefore, we are dealing with questions, not of actionable legal rights, but of justice and morality. The Comptroller of the State was guilty of a clear violation of law when he attempted to discharge the claimant. We think that it was well within the power of the Legislature to declare that the State was morally obligated to make requital for the financial loss occasioned claimant thereby. Therefore, in our opinion, the enactment in question was constitutional.

We find nothing in the cases of Matter of Chapman v. City of New York (168 N. Y. 80) and Matter of Jensen (44 App. Div. 509) which militates against the conclusion thus reached. The first case involved charges of official misconduct preferred against a municipal officer for the purpose of procuring his dismissal from office. The charges were unsuccessfully prosecuted. The second involved the prosecution of an indictment of a municipal pfficer for the crime of accepting a bribe for the performance of an official act. The indictment resulted in to acquittal. In both instances the officers sought tq recover the legal expenses incurred by them, in defending against the proceedings, from the municipality employing them, under a statute authorizing a recovery of expenses incurred in such cases. It was held that no legal, equitable or moral obligation rested upon the municipality to make compensation for moneys thus expended, and that the Legislature was without authority to make provision for compensation therefor to be made by the municipality. In those cases no legal or moral wrong was committed by those who prosecuted the charges. In our case, a wrong, both legal and moral, was committed by an officer of the State to the injury of the claimant and, for that injury, it is just that the claimant should receive compensation from the State.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: O’Brien, J.

text:
    The People of the State of New York, Respondent, v. Robert Weiner, Appellant.
    Crimes — murder in first degree — confessions — trial — question whether there is any evidence of existence of voluntary confession one of law — involuntary confessions — where no other evidence connects defendant with theory of crime on which case went to jury judgment of conviction reversed.
    1. Where upon a criminal trial the evidence cannot bear the inference that the defendant’s confessions might have been voluntary, the question of their nature should not be submitted to the jury. The question whether there is any evidence of the existence of a voluntary confession is one of law which, in the first instance, must be decided by the trial judge.
    2. Where, therefore, upon examination of the record of a trial for murder in the first degree, the evidence precludes the possibility of the existence of any moving cause for defendant’s confessions except beatings which he had received and others with which he was threatened, and except for his confessions no evidence connects him. with the theory of the crime upon which the case was sent to the jury, a judgment of conviction must be reversed.

      People v. Weiner, N. Y. Gen. Sess. March 25, 1927, reversed.
    (Argued April 2, 1928;
    decided May 1, 1928.)
    Appeal from a judgment of the Court of General Sessions of the Peace in the County of New York rendered March 25, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Robert H. Elder, Charles Rothaus and David H. Slade for appellant.
    The jury must have rejected the so-called confessions that were taken by the police, all of them, on the ground that defendant was brutally beaten, and in the belief that they were forced from him, and for the additional reason that these statements were mostly inherently unbelievable. (People v. Perretti, 244 N. Y. 527; People v. Heslin, 245 N. Y. 87.) Outside of the so-called “ confessions ” there was no evidence which, taken alone, justified, or which will sustain, the verdict of guilty. (People v. Ledwon, 153 N. Y. 10.)

      Joab H. Banton, District Attorney (Robert C. Taylor of counsel), for respondent.
    The voluntariness of a confession involves a question of fact as to which the verdict must be accepted. (People v. Doran, 246 N. Y. 409.) The evidence justified the verdict. (People v. Flanigan, 174 N. Y. 306; People v. Cohen, 223 N. Y. 406.)
   O’Brien, J.

On November 3, 1926, three prisoners attempted to escape from the city prison in New York where they were confined awaiting trial under indictments for felonies. During their attempt to break jail and shoot their way to freedom they killed the warden and one of the keepers. Their desperate venture was unsuccessful and, when their efforts were thwarted, all three committed suicide. As they were confined under indictments for felonies, their attempt to escape constitutes a felony and, since they were engaged in the commission of such a crime, the killing of the warden and keeper constitutes murder in the first degree. Anyone aiding and abetting in the commission of that crime is likewise guilty of murder in the first degree. Defendant has been convicted as one who so aided and abetted.

Weiner, the defendant, had been an associate of Amberg, one of the three prisoners, before Amberg’s arrest and incarceration. Weiner himself had been convicted of larceny and was a professional gambler and a bootlegger. After Amberg’s arrest, he visited him eight times at the city prison and the evidence indicates the existence of reasons justifying the strongest suspicion that he participated in some way in the prisoners’ attempt to escape and was prepared to supply further aid. On the morning of the day upon which the escape was attempted Weiner spent some time with Amberg in the prison. The previous day he had borrowed a chauffeur’s license and forged the name of the licensee by erasing the true name and substituting another. After his conference with Amberg, under a false name he rented a car from a garage which he had never previously patronized, spent several hours with Amberg’s brother, received twenty dollars from him and was present at the prison door with this car at the hour when the escape was attempted. When the sound of shots issued from the prison to the street where he was waiting, he drove away. Within a few hours he was apprehended and interrogated by the police. He made confessions, which unless made under the influence of fear produced by threats (Code Grim. Pro. section 395), would be competent evidence against him. These confessions embrace statements, later repudiated by him as false, to the effect that he had procured the pistols with which the murders had been committed and that, more than a week before, he had thrown them over the prison wall. The judge in his charge submitted as a question of fact the issue whether the confession had been voluntarily made and instructed that if the jury con-eluded that it had been made under the influence of fear produced by threats they must entirely reject it. After he had finished his main charge, he instructed the jury at the request of defendant’s counsel: “ If Weiner did not aid and abet in supplying pistols for use in the attempt to escape, that under the evidence in this case he must be acquitted.” That is the law of the case, the theory upon which it went to the jury and presumptively, therefore, the theory upon which defendant has been convicted. Except for his confessions, no evidence connects him with any activity in supplying pistols. If the evidence cannot bear the inference that his confessions might have been voluntary, the question of their nature should not have been submitted to the jury.

That defendant was assaulted and threatened between the times when he was seized by the police and when he was brought into the District Attorney’s office cannot be doubted. The evidence is conclusive on that point. He testified that the persons who assaulted and threatened him were police officers and he narrated in detail the methods by which he swears that his confessions were extorted from him. His testimony is denied by the officers whom he named as participants, and if no other evidence on that issue had been produced, a fair question of fact would have been presented. The evidence did not stop there. Shortly after the alleged assaults and threats, defendant was led into the presence of two assistant district attorneys to whom he complained of the treatment to which he claimed to have been subjected by the police. One of these assistant prosecutors did not appear as a witness. The other admitted that, when defendant was brought before him, he had a mark on his right cheek and red spots on his shirt and tie. A keeper in the jail in Queens county to which defendant was transferred November 5, testified that the prisoner’s nose was swollen and that there was an abrasion on his right cheek bone. The prison records include a notation to the same effect. Similar evidence was given by a keeper in the prison in New York. Defendant’s description of his treatment may be exaggerated, yet proof of the assaults is too abundant to be evaded.

To render the confessions inadmissible they must have been made under the influence of fear produced by threats or of a stipulation of. immunity from prosecution (Code Crim. Pro. section 395.) Concluding as we must from the evidence that assaults and threats were made against defendant, the impossibility of discovering any moving cause for these confessions, except the assaults and threats, seems to be apparent. We have not here a case where, after his confederate has divulged essential evidence, a criminal confesses in hope of a milder sentence. We are compelled to hold that the evidence is of such a forceful nature as to preclude the possibility of the existence of any moving cause for defendant’s confessions except the beatings which he had received and others with which he was threatened. We think that there is no evidence to justify a different inference.

The question whether there is any evidence of the existence of a voluntary confession is one of law. In the first instance this question must of course be decided by the trial judge. If the evidence shows- without dispute that the confession was extorted by force or fear or if a verdict that it was freely made would be clearly against the weight of evidence, the judge should reject it. Only where a fair question of fact is presented should the jury be permitted to determine whether the confession is voluntary. If there is no such conflict and if the evidence points clearly to the involuntary nature of the confession the judge should exclude it as without evidence to support it. (People v. Doran, 246 N. Y. 409, 416, 417, 428.) Here there is no evidence that the confession was made for any reason except fear produced by threats. In the Doran case the majority of this court perceived an issue of fact.

Defendant may be guilty of the crime charged in the indictment. He may even have supplied the pistols with which the murders were committed. Suspicions against him in that respect are of the gravest character, but not a shred of proof outside his involuntary confessions can be found in the record. Even without supplying pistols, the possibility exists that, by an arrangement and understanding with the prisoners to drive them to a place of safety after a contemplated escape, he aided, abetted and encouraged them to make the attempt to escape which ended in murder. That question is not here. The case was not submitted on any such theory. That theory was excluded from the jury’s consideration by that part of the charge which finally instructed to acquit unless defendant aided and abetted in supplying pistols. We cannot know what the verdict would otherwise have been.

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

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur.

Judgment reversed, etc.


author: Crane, J.

text:
    The People of the State of New York, Appellant, v. Charles Paradiso, Respondent.
    Crimes — dangerous weapons — sentence — one carrying a dangerous weapon while committing felony to receive additional punishment, not unarmed accomplices.
    Section 1944 of the Penal Law, providing that if any person while committing or attempting to commit a felony shall be armed with a pistol or other dangerous weapon, his punishment shall be increased by specified additional terms of imprisonment, applies to the sentence of the particular offender and not to the nature of the crime. If one of two or more criminals has a dangerous weapon, the degree of the crime which all commit may be raised by reason of the weapon. (Penal Law, § 2124.) All acting together are guilty of the same crime, but when it comes to the punishment, only the one having the weapon is to get the additional sentence.

      People v. Paradiso, 222 App. Div. 830, affirmed.
    (Submitted April 2, 1928;
    decided May 1, 1928.)

      Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 23, 1927, which modified and affirmed as modified a judgment of the Kings County Court rendered upon a verdict convicting the defendant of the crime of robbery in the first degree.

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for appellant.
    The court below was in error in holding that the respondent was not amenable to the provisions of section 1944 of the Penal Law. (People v. Flanigan, 174 N. Y. 356; People v. Giro, 197 N. Y. 152; People v. Madas, 201 N. Y. 349; People v. Friedman, 205 N. Y. 161; People v. Kuhn, 205 N. Y. 548; People v. Giusto, 206 N. Y. 67; People v. Michalow, 229 N. Y. 325; People v. Mc Kane, 143 N. Y. 455.)

      Joab H. Banton, District Attorney (Robert C. Taylor of counsel), amicus curiæ.

    Section 1944 of the Penal Law justifies the imposition of additional punishment upon one who was not himself armed, but was acting jointly with others who were armed. (People v. Friedman, 205 N. Y. 161; People v. Michalow, 229 N. Y. 325; People v. Mc Kane, 143 N. Y. 455; People v. Flanigan, 174 N. Y. 356; People v. Giro, 197 N. Y. 152; People v. Madas, 201 N. Y. 349; People v. Giusto, 206 N. Y. 67; People v. Kuhn, 205 N. Y. 548.)

      Caesar B. F. Barra and Ralph J. Barra for respondent.
    The Appellate Division properly held that the respondent was not amenable to the provisions of section 1944 of the Penal Law. (People v. Gowasky, 244 N. Y. 451; People v. Arnstein, 211 N. Y. 585; People v. Zayas, 217 N. Y. 78; United States v. Wiltberger, 5 Wheat. 76.)
   Crane, J.

In the County Court of Kings county the defendant was convicted of robbery, first degree, and sentenced to Sing Sing State Prison for an indeterminate sentence, the maximum to be thirty years and the minimum fifteen. years and five to ten years additional pursuant to section 1944 of the Penal Law. On appeal, the Appellate Division modified the judgment by striking out the additional sentence and certified the case to us. We think the Appellate Division was right in its modification. (See, also, People v. Kevlon, 221 App. Div. 224.)

Robbery is the unlawful taking of personal property from the person or in the presence of another against his will by means of force or violence. (Penal Law, sec. 2120.) It becomes robbery, first degree, when committed by a person armed with a dangerous weapon or being aided by an accomplice actually present. (Penal Law, sec. 2124.)

The defendant was associated in the commission of the crime with one named Napalentano, who was armed with a pistol. The defendant had no pistol.. Robbery having been committed, it became a first degree robbery for two reasons: 1st, one of the principals had a dangerous weapon; 2d, the defendant was aided by an accomplice actually present. Because the two were acting together it would have been robbery, first degree, if neither had had a pistol. The same applies to burglary. (Penal Law, sec. 402.)

These two men were principals in -the crime (Penal Law, sec. 2) and the crime was first degree robbery for the two reasons stated.

Having been convicted, how were they to be sentenced? Not nécessarily alike. The punishment is provided by section 2125 as imprisonment for not less than fifteen years. If one of these two defendants had been a fourth offender, then by section 1942 of the Penal Law, the sentence imposed on him would have been imprisonment for life. The criminal history of the defendant sometimes makes considerable difference in the sentence. One previously convicted of a felony is more severely punished than a first offender; (People v. Gowasky, 244 N. Y. 451.)

Section 1944 like section 1942 applies to the sentence of the particular defendant and not to the nature of the crime. Where one of two or more criminals has a dangerous weapon, the degree of the crime which all commit may be raised by reason of the weapon ■— all acting together are guilty of the same crime, but when it comes to the punishment, the one having the weapon is to get an additional sentence as provided in section 1944. The intention of the Legislature was to discourage the carrying of weapons and to make an added risk in committing crime to the one having the pistol or the gun. Heretofore the one with the gun ran no more chances than the others without weapons — now he will get five to ten years more for his cowardice.

The judgment should be affirmed.

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

Judgment affirmed.


text:
    The People of the State of New York ex rel. Israel Brinkman, Appellant, v. Robert Barr, as Warden of the City Prison, Respondent.
    Habeas corpus — mistrial — jeopardy — courts — habeas corpus proper to test question whether defendant has been placed in jeopardy by improper discharge of jury — court may refuse writ in its discretion — mistrial of criminal case, in case of death or illness of judge, may be declared by another judge of same court — habeas corpus properly dismissed.
    1. The writ of habeas corpus may be properly used to test the question whether the defendant has once been placed in jeopardy by the improper discharge of a jury, either before or after the case has been submitted to them for decision.
    2. Whether it shall be asked for is at the option of the defendant. The court, however, may refuse to grant the writ in the exercise of its discretion.
    3. Where a judge dies, or is too ill to appear in court, a mistrial of criminal cases pending before him may be declared by another judge of the same court.

      4. A writ of habeas corpus, therefore, is properly dismissed, and relator properly remanded to custody, where, dur'ng his trial, the presiding judge became ill and a week later, the illness continuing, at his request another judge of the same court declared a mistrial.

      People ex rel. Brinkman v. Barr, 222 App. Div. 729, affirmed.
    (Argued April 2, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 9, 1927, which unanimously affirmed an order of Special Term dismissing a writ of habeas corpus and remanding the relator to custody.

      Thomas G. Prioleau, Leonard A. Snitkin and Leo H. Klugherz for appellant.
    Habeas corpus was the proper means in this case to test the question, and is the only remedy available. (People v. Smith, 172 N. Y. 210 : People v. Scannell, 73 N. Y. Supp. 1067; Matter of Nielson, 131 U. S. 176; Matter of Spier, 1 Devereaux [N. C.], 491; People v. Cuatt, 126 N. Y. Supp. 1114; People v. Olcott, 2 Johns. Cas. 301; People v. Cignarale, 110 N. Y. 23; People v. Benjamin, 2 Park. 201; People ex rel. Hunt v. Markell, 50 N. Y. Supp. 766.) The defendant was placed in jeopardy, and, therefore, cannot again be tried for the same offense. (King v. People, 5 Hun, 297; McKenzie v. State, 26 Ark. 334; People v. Cage, 48 Cal. 323; Whitmore v. State, 43 Ark. 271; State v. Paterno, 43 La. Ann. 514; State v. Sommers, 60 Minn. 90; Helm v. State, 66 Miss. 537; Alexander v. Commonwealth, 105 Penn. St. 1.) The improper discharge of a trial jury is tantamount to an acquittal and discharges the defendant. (People ex rel. Stabile v. Warden, 202 N. Y. 138; Howes v. State, 7 South. Rep. 310; Bell v. State, 44 Ala. 393; McCauley v. State, 26 Ala. 135; Grant v. People, 4 Park. Cr. Rep. [N. Y.] 527; State v. Wamire, 16 Ind. 357; Wright v. State, 5 Ind. 290; Miller v. State, 8 Ind. 325; State v. Callendine, 8 Iowa, 288; People v. Jones, 48 Mich. 554.) The improper discharge of the jury during the temporary absence of the trial judge, over the objection of the defendant, was unwarranted, arbitrary and unlawful. (People ex rel. Jerome v. General Sessions, 185 N. Y. 504; People v. Glenn, 173 N. Y. 395; People v. Sullivan, 115 N. Y. 188; People ex rel. Herbert v. Hanley, 142 App. Div. 421; People v. Montlake, 184 App. Div. 578; State v. Nelson, 19 R. I. 467; State v. McKee, 1 Bail. L. 651; Nixon v. State, 55 Ala. 129; State v. Allen, 46 Conn. 531; Doles v. State, 97 Ind. 555; State v. Ulrich, 110 Mo. 350; People v. Cage, 48 Cal. 323; State v. Smith, 44 Kan. 75.)

      Joab H. Banton, District Attorney (Felix C. Benvenga and James Garrett Wallace of counsel), for respondent.
    The writ does not lie. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Frey v. Warden, 100 N. Y. 20; People ex rel. Danziger v. House of Mercy, 128 N. Y. 180; People ex rel. Scharff v. Frost, 198 N. Y. 110; People ex rel. Hubert v. Kaiser, 150 App. Div. 541; 206 N. Y. 46; People ex rel. Doyle v. Atwell, 232 N. Y. 96; People ex rel. Childs v. Knott, 187 App. Div. 604; 228 N. Y. 608; People ex rel. Bailey v. McCann, 222 App. Div. 465; People v. Montlake, 184 App. Div. 578; People ex rel. Stabile v. Warden, 139 App. Div. 488; 202 N. Y. 138.) The claim of former jeopardy is untenable. (People ex rel. Stabile v. Warden, 202 N. Y. 138; People ex rel. Bullock v. Hayes, 166 App. Div. 507; 215 N. Y. 172; People v. Goldfarb, 152 App. Div. 870; 213 N. Y. 664; People v. King, 5 Hun, 297; Cooley’s Const. Lim. [8th ed.] 686, 691; Wharton’s Crim. Pro. [10th ed.] § 1145; Bishop’s Crim. Law [9th ed.] §§ 1032, 1035; 1 Co. Inst. 227b; 3 Inst. 110; People v. Olcott, 2 Johns. Cas. 301; People v. Sheldon, 156 N. Y. 268; People v. Barrett, 2 Caines, 304; People v. Goodwin, 18 Johns. 187; People v. Neff, 122 App. Div. 135; 191 N. Y. 210; People ex rel. Herbert v. Hanley, 142 App. Div. 421; People v. Montlake, 184 App. Div. 578; People v. Fishman, 64 Misc. Rep. 256.)
   Andrews, J.

Where the defendant, charged with crime, has once been placed in jeopardy, he may not again be tried for the same offense. Of his right to this defense upon his second trial he may not be deprived. (People v. McGrath, 202 N. Y. 445.) Even, if he may not always bring up the matter by a plea (Code Crim. Pro. sec. 332) an objection on the record, or a proper motion which raises the issue is sufficient.

If it appears that his trial having once begun, the jury has been improperly discharged before rendering their verdict, the defendant has been put in» jeopardy. Under such circumstances there is in effect an acquittal. If there is no authority to again place the defendant upon trial upon the indictment, there is no right to restrain him of his liberty.” (People ex rel. Stabile v. Warden, etc., 202 N. Y. 138.) If thereafter the defendant is unlawfully in custody with no right to appeal from the mandate under which he is confined, he may, if he so chooses, seek a remedy by means of the writ of habeas corpus. There is no reason why, entitled to freedom, he should be imprisoned, until his case is again moved for trial. And this is so whether the discharge occurred before or after the case is submitted to the jury for decision. True in the one case, upon proper reason, a mistrial may be declared in the sound discretion of the presiding judge; in the other only as permitted by the statute. (Code Crim. Pro. sec. 428.) But in both unless the discharge is proper, there has been jeopardy. In both there is the equivalent of an acquittal. We see no ground for the distinction made in People v. Montlake (184 App. Div. 578). People ex rel. Bullock v. Hayes (215 N. Y. 172) indicates a more liberal rule. If the uncontradicted facts show that the defendant is entitled to be. released as a matter of law, then the writ may be granted. Such was the Stabile case. But they may not. There may be question as to the facts. The defendant’s rights may be properly protected by a motion on the second trial. Other reasons may exist. The writ is an alternative remedy and in the exercise of discretion may be refused.

In the case at bar we are relieved of certain of these considerations.' The trial of the defendant began before Judge Nott presiding over the Court of General Sessions. Before it was finished Judge Nott fell ill. Because of this fact various adjournments were had. Finally on Monday, January 24, Judge Rosalsky was presiding. It was announced that the illness continued and that Judge Nott might or might not be able to return a week later. Thereupon a mistrial was declared, it being stated that it was done at Judge Nott’s request. It was also said that if the defendant so desired witnesses would be called to prove the illness. This offer was not accepted. The defendant did not dispute the fact as stated.

Concededly if Judge Nott had appeared in person and ordered a mistrial under the circumstances his act would have been unobjectionable. It is said, however, that Judge Rosalsky had no authority to act in his place. We hold otherwise. It would be intolerable that where a judge dies or is too ill to appear in court a mistrial of criminal cases pending before him may not be declared by another judge of the same court.

If this be so, upon the uncontradicted facts the relator was not entitled to be discharged, although he had the right to test the question by habeas corpus. The order appealed from should be affirmed.

Cabdozo, Ch. J., Pound, Cbane, Lehman, Kellogg and O’Bbien, JJ., concur.

Order affirmed.


author: Cardozo, Ch. J.

text:
    Lizzie M. Baker, as Administratrix of the Estate of Frank M. Baker, Deceased, Respondent, v. Lehigh Valley Railroad Company et al., Appellants, Impleaded with Another.
    Negligence — railroads — motor vehicles — crossing accident — flagman not chargeable with want of reasonable vigilance — train approaching crossing at high speed without sounding bell or whistle — when cannot be said as matter of law that presence of flagman justified abandonment of other safeguards for protection of travelers — contributory negligence question for jury — charge that engineer should give such signals as might seem to be adequate and timely sufficient.
    1. A flagman whose station was between the tracks of two railroads, by which he was jointly employed, in a space about fifty-eight feet wide, cannot be charged with want of reasonable vigilance in warning the driver of an automobile of an appraching train, where, at the time it reached the tracks of one railroad, the flagman was standing with his back to it, a s gnal disc in his hand, apparently giving warning of danger on the other and when an engine had gone by on that road he turned and walked towards the automobile and signaled it to stop, but too late to prev ent its being struck by a fast moving train. Where, therefore, it is conceded that the railroad company, on whose tracks the train, which belonged to still another company, was running, was not negligent unless its flagman was at fault, the case against it to recover for the death of a passenger in the automobile, fails.
    2. As to the company whose train did the damage the question of its negligence was properly left to the jury where there is evidence that the train approached the crossing without sounding bell or whistle and the triers of the facts might say that at the crossing in question the network of tracks and intervening space were diverting or misleading. Under such circumstances it cannot be said, as matter of law, that the presence of the flagman was a signal so obvious as to justify abandonment of every other safeguard for the protection of the traveler.
    3. The question of contributory negligence was also for the jury and the ease being a death one the burden of proof as to that issue was on the defendant.
    4. There was no substantial error in the charge. The trial judge was not required to say that the engineer did his full duty by sounding his bell or whistle at particular specified intervals; it was enough to say that he should give such signals as might reasonably seem to be adequate and timely in the light of the existing circumstances.

      Baker v. Lehigh Valley R. R. Co., 221 App. Div. 787, modified.
    (Argued April 3, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 7, 1927, -unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      Thomas R. Wheeler for Lehigh Valley Railroad Company, appellant.
    There was no evidence that the flagman was not out upon the crossing. The verdict against the defendant New York Central Railroad Company upon this ground was without any positive evidence to support it. (Foley v. N. Y. C. & H. R. R. R. Co., 197 N. Y. 430; Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133; Baesens v. N. Y. C. R. R. Co., 201 App. Div. 191; Matutinovich v. N. Y. C. R. R. Co., 182 App. Div. 451; Capitula v. N. Y. C. R. R. Co., 200 App. Div. 247.) The trial court erred in its charge to the jury upon the question of warning. (Pakalinsky v. N. Y. C. & H. R. R. R. Co., 82 N. Y. 424; Nelson v. Lake Shore & Michigzn Southern R. R. Co., 185 App. Div. 174; Hoyt v. Long Island R. R. Co., 176 App. Div. 371; 224 N. Y. 586; Dolan v. Delaware & Hudson Canal Co., 71 N. Y. 285; Hale v. Rutland R. R. Co., 213 App. Div. 42; Raymer v. Rutland R. R. Co., 204 App. Div. 135.) The trial court erred in refusing to charge the jury as requested upon the adequacy of warning signals. (Ellers v. Erie R. R. Co., 178 App. Div. 298; 223 N. Y. 711; Raymer v. Rutland R. R. Co., 204 App. Div. 135.) The plaintiff’s intestate was guilty of contributory negligence as a matter of law. The motions to dismiss the complaint made by counsel for the railroad companies should have been granted. (Gallagher v. N. Y. C. R. R. Co., 120 Misc. Rep. 207; La Goy v. Director General of Railroads, 231 N. Y. 191; Pouch v. Staten Island, etc., Ry. Co., 142 App. Div. 16; Read v. N. Y. C.

      & H. R. R. R. Co., 123 App. Div. 228; Joyce v. Brockett, 205 App. Div. 770; 237 N. Y. 561; Clark v. Traver, 205 App. Div. 206; Sheehan v. Coffey, 205 App. Div. 388; Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 369.)

      Howard R. Sturtevant and Noel S. Symons for New York Central Railroad Company, appellant.
    There is no evidence in the record of any negligence on the part of the defendant New York Central Railroad Company, and assuming that the employees of the defendant Lehigh Valley Railroad Company were negligent in failing to give due, timely and adequate warning of the approach of the train, still they cannot be deemed employees of the defendant New York Central Railroad Company so as to make the latter liable for the death of the plaintiff’s intestate. (Culbane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133; Matutinovich v. N. Y. C. R. R. Co., 200 App. Div. 451; Capitula v. N. Y. C. R. R. Co., 200 App. Div. 247; Foley v. N. Y. C. & H. R. R. R. Co., 196 N. Y. 430; Baesens v. N. Y. C. R. R. Co., 201 App. Div. 191; Barnasky v. N. Y., O. & W. Ry. Co., 226 N. Y. 435.)

      Dana L. Spring for respondent.
    No errors were committed by the court in connection with certain requests. (Sipowitz v. L. V. R. R. Co., 189 App. Div. 175; 231 N. Y. 534; Cordell v. N. Y. C. R. R. Co., 70 N. Y. 119; Brown v. L. I. R. R. Co., 129 App. Div. 649; Petrie v. N. Y. C. R. R. Co., 63 App. Div. 473; 171 N. Y. 638; Dolan v. Del. & Hudson Canal Co., 71 N. Y. 285; Hoyt Case, 176 App. Div. 371; 224 N. Y. 586.) The defendants did not establish the contributory negligence of the plaintiff’s intestate. (Chamberlain v. Lehigh Valley R. R. Co., 238 N. Y. 233; Davis v. International Ry. Co., 210 App. Div. 316; Hoag v. N. Y. C. R. R. Co., 111 N. Y. 199.)
   Cardozo, Ch. J.

Frank M. Baker met his death while a passenger in an automobile owned and operated by the defendant Vardon. He was struck at a crossing by an engine of the Lehigh Valley Railroad Company, moving at high speed along the New York Central tracks. In an action by his administratrix to recover damages for his death, both the New York Central and the Lehigh Valley have been held chargeable with negligence. Fault has been imputed to the New York Central by reason of the conduct" of a flagman in its service at the crossing; fault has been imputed to the Lehigh Valley by reason of the failure of its engineer to give warning, adequate and timely, of the coming of the train.

A network of tracks covers the crossing to the peril of a traveler and his possible confusion. As one looks to the east, there is first the New York Central roadbed. This consists of four tracks; the Lehigh Valley train was running on one of them. There is then an open space about fifty-eight feet long. Beyond is the roadbed of the Erie with separate tracks and trains. A flagman, hired by the Erie and the Central jointly, has his station in this open space. His duty is to flag the trains of all the lines, to the east and to the west.

On July 16,1925, the car driven by Vardon turned from the main road, running north and south, and moved east along the crossing. At that moment an Erie engine had passed or was passing along the Erie tracks. The flagman stood with his back to the approaching travelers, a signal disc in his hand. Apparently he was giving warning of the danger on the Erie track, or so a traveler might infer. When the Erie engine had gone by, the flagman turned about. He was then facing Vardon’s car, approaching at the other side. From the main or river road to the most westerly rail the space was only thirty feet. Perceiving the approaching car, the flagman walked forward along the open space and pointed to the wheels. Vardon applied the brakes, and brought the car to a standstill; it is possible he might better have gone on. The front of the car was over the westerly rail of the second track, along which a Lehigh Valley train was rushing at fifty miles an hour without warning-bell or whistle. Vardon and Baker jumped, the latter to his death.

We find no evidence of negligence in the conduct of the flagman. His employment made it necessary to flag two lines of railroad, separated by an open space over fifty feet in length. He could not face both ways at once. He had to do the best he could. Very likely his position had a tendency to confuse a traveler’s perceptions. He seemed from his attitude to be giving signal of the danger on the Erie. Then he faced about and walked forward. The mind of an observer might not perceive at once that he meant to give warning of a danger on the other side. The fault, however, was not his.. He cannot fairly be charged with the want of reasonable vigilance. He pointed his staff at the Vardon car, and halted its advance, when he saw what was about to happen. The warning came too late because of the perils of the crossing.

We think the case against the Central fails; by concession it was not negligent unless its flagman was at fault.

The case against the Lehigh Valley rests upon a different basis. There is evidence that its train approached the crossing without sounding bell or whistle. We cannot say that the presence of the flagman was a signal so obvious as to justify abandonment of every other safeguard for the protection of the traveler. Doubtless there are crossings where nothing more should be required. A flagman may be in such clear view that only recklessness could mistake the meaning of his presence. All depends upon the circumstances. Here the network of tracks and the intervening space were diverting and misleading, or.so the triers of the facts might say. The law does not hold that a flagman thus stationed is a warning so arresting as to dispense with any other. The needs of the occasion must be measured by a jury.

Contributory negligence is urged, but again the jury must decide. If Vardon, the driver, were the plaintiff, a different question would be here. The actual question is one as to the contributory negligence, not of driver, but of passenger. The case being a death one, the burden of proof as to this issue was laid on the defendant (Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345; Chamberlain v. Lehigh V. R. R. Co., 238 N. Y. 233). Baker may have given warning, and his warning may have been unheeded. There is testimony by Vardon that he was silent, but Vardon was a hostile witness. Nor is this the only explanation whereby Baker would be cleared of fault. Believing the car was about to stop, he may have thought that warning would be needless, and discovering too late that the car was going on, he may have thought that interference would be dangerous. These and like possibilities were to be estimated by the triers of the facts. They make it impossible to deal with the issue as a question for the court.

There was no error in the charge, or none so substantial as to call for a reversal. The trial judge was not required to say that the engineer did his full duty by sounding his bell or whistle at the particular intervals specified in the requests submitted by the defendants. The intervals would vary with the place and the occasion. It was enough to say that he should give such signals as might reasonably seem to be adequate and timely in the light of the existing circumstances (Sipowicz v. Lehigh Valley R. R. Co., 189 App. Div. 715, 719; 231 N. Y. 534; Petrie v. N. Y. C. & H. R. R. R. Co., 63 App. Div. 473; 171 N. Y. 638; Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583, 588; cf. Penal Law, § 1985).

The judgment of the Appellate Division and that of the Trial Term against the defendant the New. York Central Railroad Company should be reversed, and the complaint as to that defendant dismissed, with costs in all courts.

The judgment against the defendant Lehigh Valley Railroad Company should be affirmed, with costs.

Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Judgment accordingly.


text:
    Max Fine & Sons, Inc., Respondent, v. The Lindarose, Inc., et al., Defendants, and Wolf Gilband, Appellant.
    Lien — mortgage — subordination of mechanic’s lien to subsequent mortgage ■ — • essential provisions of statute must be strictly followed to deprive dissenting lienor of his rights — where no formal consent to execution of mortgage was ever given or filed rights of lienor are unaffected.
    1. Under section 29 of the lien Law (Cons. Laws, ch. 33), a mechanic’s lien may be subordinated to a subsequent mortgage where seventy-five per cent of the lienors, by a writing duly acknowledged, authorize one or more persons to consent to the execution of such mortgage and such consent is given in writing, duly acknowledged, and is filed in the office of the county clerk, together with the original authority, but a lienor may not be deprived of his rights except by strict adherence to the essential provisions of the statute, and until the consent is filed the results intended are not accomplished.
    2. Where, therefore, the required percentage of lienors properly authorized four persons to consent to the execution of a mortgage, but eoneededly no formal consent was ever given by them and no consent ever filed, the rights of a dissenting lienor are unaffected. The need of a written consent is not to be supplied, as against him, by the action of three of the four permitting, as stockholders, a mortgage to be executed by their corporation, and, as mortgagees, permitting their mortgage to be subordinated to the new security.

      Fine & Sons, Inc., v. Lindarose, Inc., 220 App. Div. 616, modified.
    (Argued April 4, 1928;
    decided May 1, 1928).
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 17, 1927, unanimously affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term directing the foreclosure an,d sale of mortgaged property.

      Samuel Okin for appellant.
    The plaintiff failed to prove facts sufficient to constitute a cause of action against the defendant Wolf Gelband, and the complaint should have been dismissed as against him. (Jasper v. Rozinski, 228 N. Y. 349; Lewis v. Smith, 9 N. Y. 502; Merchants Bank v. Thompson, 55 N. Y. 7; Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 127; Goebel v. Iffla, 111 N. Y. 170; Nelson v. Brown, 144 N. Y. 384; Anderson v. Mc Neeley, 120 App. Div. 676; Fern v. Osterhout, 11 App. Div. 319; Barker v. Burton, 67 Barb. 458; Jacobi v. Mickle, 144 N. Y. 237; Copasso v. Apfel, 214 App. Div. 638; Williamson v. Atlas Powder Co., 212 App. Div. 68.)

      Samuel W. Dorfman for respondent.
    The complaint did not fail to state facts sufficient to constitute a cause of action against the defendant Wolf Gelband because of its failure to allege all of the facts upon which plaintiff based its claim, that the lien of the mortgage was superior to the mechanic’s lien of said defendant. (Jasper v. Rozinsky, 228 N. Y. 349.) Section 29 of the Lien Law applies to the transaction in this case and its provisions have been properly and substantially complied with. (Rochester Savings Bank v. Averell, 96 N. Y. 467; Martin v. Niagara Falls Paper Mfg. Co., 122 N. Y. 165; Black v. Ellis, 129 App. Div. 140; Karisik v. Peoples Trust Co., 252 Fed. Rep. 324; 252 Fed. Rep. 337.)
   Andrews, J.

By this judgment a mechanic’s lien has been subordinated to a subsequent mortgage. This may be done under authority of section 29 of the Lien Law (Cons. Laws, ch. 33). But a lienor is not to be deprived against his will of rights long ago conferred upon him, except by strict adherence to the essential provisions of the statute.

Where the owner of land against which liens have been filed, wishes a loan secured by a mortgage thereon, and where 75 per cent of the lienors, by a writing duly acknowledged, shall authorize one or more persons to consent to the execution of such mortgage, if such consent shall be given in writing duly acknowledged and shall be filed in the office of the county clerk, together with the original authority, then all mechanics’ liens shall be subordinated to the lien of the mortgage. So, too, from the date of the filing of the consent, priority among hens themselves is destroyed. Other results also follow. The consent may be made on condition that a certain sum be deposited with the clerk as security for claims against the property. Probably other conditions may be imposed.

The idea of the statute is to permit the necessary financing of construction unembarrassed by the objection of a few lienors. But until the consent is filed the results intended are not accomplished. Nor until filed, has a dissenting lienor any notice that his claim has been affected, and if so under what conditions. Each provision of the statute is essential. The requirement as to filing is not merely formal.

In the case before us three-fourths of the lienors did properly authorize four persons to consent to the execution of the mortgage. This authority was given by one paragraph in a long document dealing with many subjects, but it was sufficient. And it seems to be admitted that this paper was acknowledged and filed. Concededly, however, no formal consent was ever given — no document signed and acknowledged by the persons designated, acting as representatives of the lienors and in their interests.

Four men, Clarke, Lindner, Mencher and Krefetz, were named as those who might give consent on the part of the lienors. Clarke never signed any paper whatever. The reason may be stated in the brief of the respondent, but it does not appear in the record. All the stock of the Lindarose corporation was assigned to these four. They were to hold it in trust for the benefit of creditors. They were also given, for the same purposes a trust mortgage. Under these circumstances Lindner, Mencher and Krefetz, holding more than two-thirds of the stock of the Lindarose corporation, consented to the execution by it of a mortgage to the plaintiff for $45,000, that being the mortgage here foreclosed. This was the consent required by statute to authorize the corporate action. They likewise executed an agreement, subordinating the trust mortgage mentioned to the new $45,000 mortgage. These two papers are the basis of a finding that this mortgage was executed with the knowledge and written consent of ” the four men authorized by the lienors to give such consent on their behalf. Knowledge on their part or the lack of it is immaterial. Not only is there no testimony justifying the finding of a written consent, but there is no finding that if given it was filed. The statute requires the formal consent of the persons designated, acting for the lienors, it being assumed that so acting they will protect the interests of their principals, and if necessary will impose proper conditions. The need of this formal paper is not to be supplied, as against a non-assenting lienor, by the action of some of them permitting as stockholders a mortgage to be executed by their corporation, and as mortgagees permitting their mortgage to be subordinated to the new security. And as has been said, there remains the requirement that the consent be filed.

The judgment appealed from should be modified by striking therefrom the provision which in effect decrees that Wolf Gelband and all persons claiming under him be barred and foreclosed of all right, claim, lien, etc., in the mortgaged premises, and by inserting therein a provision that the premises be sold, subject to any valid lien acquired therein by said Gelband before said mortgage was recorded. As so modified the.judgment should be affirmed, with costs in all courts to said appellant Gelband.

Cabdozo, Ch. J., Pound, Cbane, Lehman, Kellogg and O’Bbien, JJ., concur.

Judgment accordingly.