text:
    In the Matter of Conrad H. Sullivan, Appellant against Benjamin I. Taylor et al., Constituting the Town Board of the Town of Harrison, et al., Respondents.
    Argued November 22, 1938;
    decided January 10, 1939.

      Conrad H. Sullivan, in person, for appellant.
    The Town Law (Cons. Laws, ch. 62) prescribes a fixed term for the office of town attorney. (Stuber v. Coler, 164 N. Y. 22; People ex rel. Joyce v. Brundage, 78 N. Y. 403; People ex rel. Domschke v. Messenger, 200 App. Div. 418; 233 N. Y. 687; State v. Knight, 76 Mont. 71.) No triable issue of waiver or estoppel was raised (Stadler v. City of Detroit, 13 Mich. 346; State v. Willott, 103 Neb. 798; People ex rel. Satterlee v. Board of Police, 75 N. Y. 38; Quayle v. City of New York, 278 N. Y. 19; Fitzsimmons v. City of Brooklyn, 102 N. Y. 536: Moore v. Board of Education, 121 App. Div. 862; Grant v. City of Rochester, 79 App. Div. 460; 175 N. Y. 473; Riley v. Mayor, 96 N. Y. 331; People ex rel. Lane v. Case, 64 Hun, 636; People v. Reinberg, 263 Ill. 536; State v. Taylor, 156 So. Rep. 549, 550; State v. Bird, 163 So. Rep. 248, 254; State v. Chapin, 110 Ind. 272; Caldwell v. Lyon, 80 S. W. Rep. [2d] 80; Abrams v. Horton, 18 App. Div. 208.) The words “ to serve at the pleasure of this board ” are surplusage and should be disregarded. (People v. Dooley, 69 App. Div. 512; 171 N. Y. 74; People ex rel. Bridgeman v. Hall, 104 N. Y. 170; Stadler v. City of Detroit, 13 Mich. 346; People ex rel. Young v. Gulvin, 164 App. Div. 768.) The town board was without power to remove petitioner. (Cons. Laws, ch. 47, § 36;
      People ex rel. Cline v. Robb, 126 N. Y. 180; Matter of Shatter v. Moses, 241 App. Div. 485; Matter of Fitzgerald, 88 App. Div. 434; Greene v. Knox, 175 N. Y. 432.)

      John J. Di Sesa for respondents.
    Defendants’ attempt to make a limited appointment was void and does not inure as an appointment for a full term. (Riley v. Mayor, 96 N. Y. 331; People ex rel. Bridgeman v. Hall, 104 N. Y. 170; Matter of Snyder, 190 N. Y. 66.) The petitioner is estopped from contending as against the defendants that only part of the resolution of his appointment is void. (Hotchkiss v. City of Binghamton, 211 N. Y. 279; Brady v. Nally, 151 N. Y. 258; Matter of Pet. of N. Y., L. & W. R. R. Co., 98 N. Y. 447; Fisher v. City of Mechanicville, 225 N. Y. 210; Greenberg v. Remick & Co., 230 N. Y. 70; Thompson v. Hofstatter, 265 N. Y. 54; Rodkinson v. Haecker, 248 N. Y. 480; Parmely v. Showdy, 86 Misc. Rep. 634; Carpenter v. Stilwell, 11 N. Y. 61; Trustees v. Smith, 118 N. Y. 634; Rothschild v. Title Guaranty & Trust Co., 204 N. Y. 458; Draper v. Oswego Co. Fire Relief Assn., 190 N. Y. 12.) Petitioner, by his conduct, advice and acceptance of the appointment, waived his right to hold office pursuant to statute. (Hotchkiss v. City of Binghamton, 211 N. Y. 279; Brady v. Nally, 151 N. Y. 258; Matter of Pet. of N. Y., L. & W. R. R. Co., 98 N. Y. 447: Alsens A. P. C. Works v. Degnon Cont. Co., 222 N. Y. 34.) The Legislature did not intend, in enacting section 24 of the Town Law, to provide that the services of a town attorney could not be terminated by a vote of the board. (Matter of Niagara, L. & O. Power Co., 203 N. Y. 493; Matter of Dunn, 205 N. Y. 398; Ransom v. Ransom, 147 App. Div. 835; Martin v. Camp, 219 N. Y. 170.)
   Rippey, J.

Section 20 of the Town Law (Cons. Laws, ch. 62) (L. 1932, ch. 634, as amd.) provides for elective and appointive town officers. It is provided that the town board may establish the office ” of town attorney or town engineer and that if the town board shall so establish the office of town attorney or town engineer, or both, it shall fix the salary of such officer or officers.” (Subd. 2, ^ [a].) On January 1, 1936, the town board of the town of Harrison, Westchester county, met and established the office of town attorney, fixed his salary at $4,500 per year and duly appointed the. petitioner to the office, whereupon petitioner qualified by filing his constitutional oath of office with the county clerk within the time specified by section 25 of the Town Law, and thereupon entered upon the discharge of his duties. He continued as town attorney until respondents excluded him from office and attempted to end his term of office by resolution on November 8, 1937. He has held himself ready and willing at all times to perform the duties of his office and has demanded that he be recognized as town attorney until the expiration of his term on December 31, 1937, and that he be paid the salary as fixed for the period from November 1, 1937, to thedate of the commencement of this proceeding. Respondents refused to recognize him further as town attorney or to pay him salary after November 8, 1937. To compel such recognition and payment of his salary he brought this proceeding and was successful in Special Term. The Appellate Division, however, as a matter of law and not in the exercise of discretion, unanimously reversed the order of the Special Term and dismissed the proceeding on the ground that, by his conduct and agreement at the time of bis appointment, he had waived the right to hold his office and was estopped to assert that the appointment was not at the pleasure of the town board.

In the verified petition it is alleged that the appointment was for the term commencing January 1, 1936, that by statute the term of office did not expire until the first day of January next succeeding the next biennial town election held after the time of his appointment, that the first biennial town election after his appointment was held on November 2, 1937, and that his term of office did not expire until December thirty-first of that year. Petitioner asserts that the town board had no power to remove him during the term of office as fixed by section 24 of the Town Law. No answer to the petition was filed or served as required by section 1291 of the Civil Practice Act, and the Special Term rightfully proceeded as upon a default. Respondents appeared, however, on the return day, and the only way they raise the question of the right of petitioner to relief as demanded is by an affidavit made by the supervisor of the town in which he asserted that petitioner and the town board agreed, before the resolution creating the office of town attorney was adopted, that petitioner should be removable at the pleasure of the town board, whereupon the resolution was prepared by petitioner and adopted by the board and provided that he should serve at the pleasure of this board.” A copy of the resolution was attached to the affidavit. The lower courts have assumed that such an agreement was made, and we shall also so assume, since the decision would be the same whether the agreement were made or not. If not made, petitioner was entitled to relief in accordance with the prayer in the petition; if made, the same result follows, since the term of_offi.ce, as fixed by statute, could not be changed by agreement of the parties or by resolution of the town board and no power of removal was granted by the Legislature to the appointing authority.

The town attorney appointed in pursuance of the provisions of section 20 of the Town Law was a public officer (Cf. Thompson v. Hofstatter, 265 N. Y. 54, 57-59). He was required to take and file the constitutional oath of office; the statute refers to him as an officer ” and to the position of town attorney as an “ office.” To be eligible to such office he was required to be an elector of the town at the time of his appointment and throughout his term of office (Town Law, §§ 20-25).

Section 24 of the Town Law provides for the terms of office of all town officers whether elective or appointive and reads, so far as material here, as follows: “ The town clerk, the town superintendent of highways, the town engineer and the town attorney, whenever appointed, shall hold their respective offices until the first day of January next succeeding the first biennial town election held after the time of their appointment. All other appointed officers and employees shall hold their respective offices and positions at the pleasure of the town board, except as otherwise provided by law.”

By the provisions of the Town Law above referred to, the Legislature left with the town board the right to create the office of town attorney, to appoint the incumbent and to fix his salary. The statute, however, definitely fixed the term and duration of the office by name when created by the town board. Thus, the Legislature determined that the term of the office of the person appointed should continue until the first day of January next succeeding the first biennial town election held after the time of his appointment. No power was granted to the town board by the Legislature to change the length of the term of office, without which the town board could not affect the duration of the term of the appointee (Matter of Litt v. Emery, 80 Hun, 380; affd., 144 N. Y. 628). Public policy denies the right to the parties, by agreement, to fix the duration of the term. No power was granted by the Legislature to the town board to remove the town attorney. He was not a mere employee of the town. Since the office was a public office with a fixed statutory term, the petitioner could be removed only by proceedings "under section 36 of the Public Officers Law (Cons. Laws, ch. 47) (People ex rel. Griffin v. Lathrop, 142 N. Y. 113, 116; People ex rel. Cline v. Robb, 126 N. Y. 180, 183; Matter of Shatter v. Moses, 241 App. Div. 485, 486). The fact that petitioner agreed that he would serve during the pleasure of the board only cannot change the result. Such an agreement and the acceptance of the office thereafter do not bar petitioner from the right and title to the office to which he was appointed for the full term fixed by statute (Matter of Litt v. Emery, supra; People ex rel. Lane v. Case, 64 Hun, 636). Neither the doctrine of waiver nor estoppel has any application to such a case where salary or tenure of office is fixed by statute (People ex rel. Ryan v. French, 91 N. Y. 265; Pitt v. Board of Education, 216 N. Y. 304; State ex rel. County Attorney v. Willott, 103 Neb. 798; Stadler v. City of Detroit, 13 Mich. 346; Cf. Quayle v. City of New York, 278 N. Y. 19, 22).

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

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    In the Matter of the Will of Ella Neher, Deceased. Village of Red Hook, Appellant; John J. Bennett, Jr., as Attorney-General of the State of New York, et al., Respondents.

      Argued November 23, 1938;
    decided January 10, 1939.

      Elijah T. Russell for appellant.
    The court has ample power to allow the relief asked. (Cons. Laws, ch. 50, § 113, subd. 2; Bogert on Trusts, § 431, pp. 1289, 1310, 1320; Trustees of Sailors’ Snug Harbor v. Carmody, 211 N. Y. 286.)

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer of counsel), for respondent.
    The application of the cy pres doctrine does not authorize the use of the trust property for any other purpose than that of rendering hospital or medical care and attention. (Matter of MacDowell, 217 N. Y. 454; Matter of Swan, 237 App. Div. 454; Matter of Gary, 248 App. Div. 373; 272 N. Y. 635.)

      Edward C. O’Connell, as special guardian for Eleanor Martin, respondent.
    The Surrogate has no power to change the terms of the trust and thus nullify the general purpose of the devise. (Matter of Mahlstedt, 140 Misc. Rep. 245; Torrey v. Day, 81 Misc. Rep. 39; Matter of Davis, 77 Misc. Rep. 72; Hull v. Pearson, 36 App. Div. 224.) The Surrogate cannot change the terms of the will and thus defeat the general intent of the testatrix. (Loch v. Mayer, 50 Misc. Rep. 442; Matter of Donchian, 120 Misc. Rep. 535; Nichols v. N. Y. & Erie R. R. Co., 12 N. Y. Supp. 121; American Law Institute, Restatement of Law of Trusts, ch. 11, § 399, pp. 1211, 1214, 1215.)

      Frederick L. Conklin for Harry Miller, respondent.
   Loughran, J.

The will of Ella Neher was admitted to probate by the Surrogate’s Court of Dutchess county December 22, 1930. Paragraph 7 thereof made these provisions: “ I give, devise and bequeath my home in Red Hook Village, on the east side of South Broadway, consisting of house, barn and lot of ground * * * to the incorporated Village of Red Hook, as a memorial to the memory of my beloved husband, Herbert Neher, with the direction to said Village that said property be used as a hospital to be known as ‘ Herbert Neher Memorial Hospital.’ The trustees of the Village of Red Hook, consisting of the President and the Trustees, shall constitute the managing board with full power to manage and ■ operate said hospital as they deem wise for the benefit of the people of Red Hook, and each succeeding Board of Trustees shall constitute the Board of Trustees for said hospital, so that any person duly elected and qualified or duly appointed and qualified as a President or Trustee of the said Village of Red Hook shall be a trustee of said hospital during such person’s lawful term of office, and shall be succeeded as a trustee on the hospital board by his successor on the Village Board.”

All her other estate Mrs. Neher gave to relatives and friends.

On September 1, 1931, the trustees of Red Hook (hereinafter called the village) resolved to accept the real property devised and bequeathed by the Will of Ella Neher, deceased, according to the terms of the Will of said Ella Neher.”

In March, 1937, the village presented to the Surrogate’s Court its petition asserting that it was without the resources necessary to establish and maintain a hospital on the property devised to it by the testatrix and that a modern hospital theretofore recently established in the neighboring village of Rhinebeck adequately served the needs of both communities. The prayer of this petition was for a decree construing and reforming paragraph Seven of the last Will and Testament of said decedent directing and permitting your petitioner to receive said property and to erect and maintain thereon a building for the administration purposes of said Village to be known and designated as the Herbert Neher Memorial Hall, with a suitable tablet placed thereon expressing such memorial.”

This petition the Surrogate denied on the single ground “ that to read into the will a general intention to devote the property to charitable purposes instead of an intention to limit the use of the property to the operation of a hospital, would do violence to the expressed testamentary design of Mrs. Neher.” The Appellate Division has affirmed the Surrogate. The village brings the case here by our leave.

This gift was not a gift to a particular institution. There was to be no singular object of the bounty. This gift was one to a whole community —“ to the incorporated Village of Red Hook.” The idea initially expressed by the testatrix was that her home should be dedicated to the village in the name of her husband. The only question is whether this first stated design of beneficence at large is necessarily to be denied prime import, because of the words that immediately follow — with the direction to said Village that said property be used as a hospital to be known as ‘ Herbert Neher Memorial Hospital.’ ” This last phrase, it is to be noticed, gave no hint in respect of a predilection for any certain type of the manifold varieties of medical or surgical care. Nor did the will make any suggestion as to management or control, save that the village trustees (as such) were designated as a governing board. So great an absence of particularity is a strong circumstance against the view that the instruction of the testatrix was of the substance of the gift.

When paragraph 7 of the will is taken as a whole, the true construction, we think, is that the paramount intention was to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose, and to graft on to the general gift a direction as to the desires or intentions of the testator as to the manner in which the general gift is to be carried into effect.” (Parker, J., in Matter of Wilson, [1913] 1 Ch. 314, 321.) Such a grafted direction may be ignored when compliance is altogether impracticable and the gift may be executed cy pres through a scheme to be framed by the court for carrying out the general charitable purpose. (See Real Prop. Law [Cons. Laws, ch. 50], § 113, subd. 2; Sherman v. Richmond Hose Co., 230 N. Y. 462, 472, 473; Matter of Gary, 248 App. Div. 373; 272 N. Y. 635; American Law Institute, Restatement of Law of Trusts, § 399, Comment at p. 1211.)

We expréss no opinion as to the other questions stated but not passed upon by the Surrogate.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed and the matter remitted to the Surrogate’s Court for further proceedings in accordance with this opinion, without costs.

Crane, Ch. J., Hubbs and Finch, JJ., concur; Lehman, O’Brien and Rippey, JJ., dissent.

Ordered accordingly.


text:
    In the Matter of Ralph Rogers et al., as Executors of Charles B. Rogers, Deceased, et al., Appellants, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued November 23, 1938;
    decided January 10, 1939.

      Arthur L. Evans for appellants.
    The bank became entitled to possession and took possession as lessee under the lease, and not as vendee or in any other capacity under the executory contract of sale; and at no time will the bank or its assignee be or become entitled to possession under the executory contract of sale. (Wagner v. Gaudig & Blum Corp., 223 App. Div. 254; Darby v. Callaghan, 16 N. Y. 71; Halsted v. Globe Indemnity Co., 258 N. Y. 176; Atterbury v. Bank of Washington Heights, 241 N. Y. 231; Fleischman v. Furgueson, 223 N. Y. 235; Cream of Wheat Co. v. Crist Co., 222 N. Y. 487; Daniel Holding Corp. v. 234 West 42nd St. Corp., 255 App. Div. 8; Berry v. Stuyvesant, 245 App. Div. 516; Rosenthal Paper Co. v. Nat. Folding B. & P. Co., 226 N. Y. 313; Rae Co. v. Courtney, 250 N. Y. 271; Bostwick v. Frankfield, 74 N. Y. 207; New York Building Loan Banking Co. v. Keeney, 56 App. Div. 538; Clinton v. Hope Ins. Co., 45 N. Y. 454; Stewart v. Long Island R. R. Co., 102 N. Y. 601.) The instrument is not subject to a mortgage tax under article 11 of the Tax Law (Cons. Laws, ch. 60). (People ex rel. Mutual Trust Co. v. Miller, 177 N. Y. 51; Iselin v. United States, 270 U. S. 245.)

      John J. Bennett, Jr., Attorney-General {Joseph M. Mesnig of counsel), for respondents.
    The written instrument is a single, inseparable contract under which the bank was in possession of the property and was the vendee of an executory contract of sale. (White v. Walsh, 62 Misc. Rep. 423; Charles v. Scheibel, 128 Misc. Rep. 275; 221 App. Div. 816; Ostrander v. Livingston, 3 Barb. Ch. 416; Carney v. Pendleton, 139 App. Div. 152; Bullock v. Cutting, 155 App. Div. 825; Hyde v. Booraem & Co., 16 Pet. 169; People ex rel. Desiderio v. Conolly, 238 N. Y. 326.)
   Loughran, J.

Article 11 of the Tax Law (Cons. Laws, ch. 60) provides that upon the recording within this State of every mortgage of real property there shall be payable a tax of fifty cents for each one hundred dollars of the principal secured thereby (§§ 253, 257). For the purposes of this tax, an executory contract for the sale of real property under which the vendee has or is entitled to possession ” is deemed to be a mortgage and is taxable at the amount unpaid thereon (§ 250). This controversy is one as to the scope of these provisions.

The facts upon which the issue arises are undisputed. In 1922, the First National Bank of Utica (which we shall call the Bank) desired to acquire certain real estate in the city of Utica as a site for a new banking house. The owners of the property held it for sale at $800,000. This sum the Bank was not ready to pay, “ but it was willing to lease the properties for a long term of years and erect its building thereon during the term providing it could purchase the land at the end of the term at its specified cost.” The trustees of the estate of Elizabeth B. Rogers considered the situation as a favorable opportunity for securing an exceptionally safe and profitable long term investment.” They bought the property for $800,000 and made a written agreement with the Bank which may be sufficiently outlined as follows: The trustees let and demised” the property to the Bank from the 15th day of July, one thousand nine hundred and twenty-two, for and during and until the full end and term of ninety-nine years thence next ensuing and fully to be complete and ended.” The Bank agreed to pay for the use of said property, the yearly rent or sum * * * of five per centum, per annum, net, on the sum of eight hundred thousand dollars ($800,000.00) in equal quarterly payments, to wit, on the fifteenth day of July, October, January and April, in each and every of the said years, in advance.” This annual rental of forty thousand dollars ($40,000.00) ” was to be net to the trustees, with no deduction for taxes now imposed or which may be imposed * * * during the life of this lease.” The Bank also agreed to construct and maintain upon the land leased to it ” a building of the value of at least $800,000. Lastly it was stipulated that at the end of the term of this lease,” the property would be purchased by the Bank from the trustees for $800,000 and that- the trustees would then sell and convey it to the Bank for that sum.

This agreement was recorded in the office of the clerk of Oneida county on September 5, 1922. The State Tax Commission has ruled that the recorded instrument 11 constituted an executory contract of sale under which the vendee had or was entitled to possession within the definition contained in section 250 of the Tax Law_” and that the recording tax imposed by section 253 was payable accordingly. This is a certiorari proceeding to review that determination. The petitioners are the trustees of the Rogers estate, the Bank (now named First Citizens Bank and Trust Company of Utica) and First National Holding Corporation (to which the recorded instrument has been assigned by the Bank). The Appellate Division has confirmed the ruling of the State Tax Commission and the case is now here on the appeal of the petitioners.

The parties are agreed that the recorded instrument is in part an executory contract for the sale of real property. But this mere classification of the instrument does not decide the case. The fundamental question concerns the application of the following words of section 250 of article 11 of the Tax Law: “ Executory contracts for the sale of real property under which the vendee has or is entitled to possession shall be deemed to be mortgages for the purposes of this article and shall be taxable at the amount unpaid on such contracts.” (The emphasis is ours.) No other class of executory contracts for the sale of real property is subject to the recording tax imposed by section 253 of article 11. We must take these sections of the statute as we find them. It is not for us to enlarge them upon any notion that the Legislature might reasonably have done so.

The recorded instrument is both a valid present lease of the property therein described and a valid executory contract for the sale thereof in futuro. (See Stewart v. Long Island R. R. Co., 102 N. Y. 601.) The contract of sale is to be performed “ at the end of the term ” of the lease. Until that time, the Bank can have or be entitled to possession of the property only under the lease. The instrument does not say that the Bank is ever to have possession thereunder as vendee. The instrument says that (when the term of the lease is at an end) the Bank shall be entitled to a conveyance of the property upon its payment of the stated purchase price. In short, as we read the instrument, there can never come a time when the Bank can have or be entitled to possession of the property under the executory contract for the sale thereof. So viewed, the transaction was not reached by article 11 of the Tax Law. (Cf. White v. Walsh, 62 Misc. Rep. 423.)

The order of the Appellate Division should be reversed and the determination of the State Tax Commission annulled, with costs in the Appellate Division and in this court.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Finch and Rippey, JJ., concur.

Order reversed, etc.


author: Rippey, J.

text:
    Margaret Lee, as Administratrix of the Estate of James Lee, Deceased, Appellant, v. City Brewing Corporation, Respondent.

      Argued November 28, 1938;
    decided January 10, 1939.

      Louis Rothbard and Ralph Stout for appellant.
    Upon the evidence the questions of negligence and contributory negligence were for the jury. (Elwood v. Western Union Tel. Co., 45 N. Y. 549; Irish v. Union Bag & Paper Co., 103 App. Div. 45; 183 N. Y. 508; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418; Piwowarski v. Cornwell, 273 N. Y. 226; Hart v. Hudson River Bridge Co., 80 N. Y. 622; Frate v. State, 245 App. Div. 442; "cBride v. Brady, 234 App. Div. 882; Stump v. Burns, 219 N. Y. 306; Massoth v. Delaware & Hudson Canal Co., 64 N. Y. 524; Countryman v. Breen, 274 N. Y. 470; Minerly v. Union Ferry Co., 56 Hun, 113; Viscardo v. Galloway, 227 App. Div. 672; People v. Wolf, 153 Misc. Rep. 230; Anderson v. Burkardt, 275 N. Y. 281.)

      Benjamin C. Loder for respondent.
    The evidence clearly discloses that plaintiff’s intestate was guilty of contributory negligence as a matter of law. (Shuman v. Hall, 246 N. Y. 51; Shirley v. Larkin Co., 239 N. Y. 94; Meadows v. Lewis, 235 App. Div. 243; Manard v. Sheppard, 243 App. Div. 265; Fitzpatrick v. International Ry. Co., 252 N. Y. 127; Barry v. Rutland R. R. Co., 203 App. Div. 287.) Plaintiff failed to prove the negligence of defendant. (Underhill v. Major, 220 App. Div. 173.)
   Rippey, J.

The accident out of which this action arose happened between 5:30 and 6:00 p. M. on December 31, 1936, at the intersection between Old Country road and School street in Westbury, Nassau county, when defendant’s truck, partly loaded, and moving along Old Country road in a westerly direction crashed into the right side of a Plymouth sedan which was driven by plaintiff’s intestate in a northerly direction out of School street. The truck drove the passenger car forward and finally came to rest, bottom side up, on top of the small car, near the fence on the northerly side of Old Country road and some eighty feet or more westerly of the point of collision. The Plymouth car was demolished and plaintiff’s intestate received injuries from which he died on the following day. The truck was badly wrecked. The jury rendered a verdict for the plaintiff but the judgment entered thereon was set aside by the Appellate Division, as matter of law, and the complaint was dismissed.

Counsel for respondent strenuously urges that the only inference possible from the testimony of Frykberg, the driver of the truck, coupled with the evidence of existing conditions is that deceased disobeyed the statutory requirements or rules governing the right of way and also the admonition of the concededly existent traffic stop sign and heedlessly and recklessly drove into the intersection immediately into the path of defendant’s oncoming truck ” and was, therefore, guilty of contributory negligence as matter of law. The Appellate Division so decided.

The burden of establishing contributory negligence on the part of the plaintiff’s intestate rested upon the defendant (Decedent Estate Law (Cons. Laws, ch. 13), § 131). It does not follow that evidence produced only by defendant may be available to it in meeting that burden. The defendant could take advantage of any evidence in the case, by whomsoever produced, to establish that defense (Fitzpatrick v. International Ry. Co., 252 N. Y. 127, 134). It is still essential, however, that defendant shall have available some evidence from which it may be reasonably and necessarily inferred, to the exclusion of inferences to the contrary, that the deceased violated the duty cast upon him of exercising such care and caution for his own safety as reasonable prudence dictated and that the violation of that duty contributed proximately to the accident. Nonsuit cannot follow mere failure on the part of plaintiff to produce evidence to the contrary.

Frykberg, the driver of the truck, was the only occupant of the truck and the only eyewitness to the accident. He was examined on two different occasions before trial and he also testified at official investigations of the accident. Upon the trial, plaintiff read his testimony taken on the examinations before trial in which he testified to facts necessary to plaintiff’s case. After plaintiff rested her case, defendant called him to the stand and he testified to facts designed to absolve himself from blame for the accident. No one was available to contradict some of his statements. He was still in defendant’s employ at the time of the trial. On material points, his testimony on direct and cross-examination at the trial was contradictory and statements made on the various occasions on which he was examined were contradictory to and inconsistent with each other. He was an interested witness. His credibility, the reconciliation of his conflicting statements, a determination of which should be accepted and which rejected* and the truthfulness and accuracy of his testimony, whether contradicted or not, were exclusively for the jury, the trier of the facts (McDonald v. Metropolitan Street Ry. Co., 167 N. Y. 66; Sharp v. Erie R. R. Co., 184 N. Y. 100, 106; Piwowarski v. Cornwell, 273 N. Y. 226, 229). The court could not put its finger upon any particular item of testimony by Frykberg and say, as matter of law, that it was the truth.

Frykberg said he was unable to give any estimate of the speed of the Plymouth car. He said that when he was about twenty feet from the intersection driving at twenty-five miles per hour, he glanced to the left and saw decedent’s car approaching and that the headlights were burning. He said the Plymouth car was then twenty feet south of the dirt shoulder on the south side of Old Country road, again that it was forty-five feet away, again that it traveled only five feet from the time he first saw it until he struck it, and he later changed this' to forty-five feet. Which statement was to be taken as true? The distance from the south edge of the dirt shoulder to the point of collision was approximately thirty feet. Deceased then travelled either five feet or fifty feet or seventy-five feet while Frykberg was travel-ling twenty feet, according to which statement of the witness, if either, is to be taken as true. The jury were entitled to disregard the testimony entirely. There was nothing else upon which any inference could be drawn concerning the speed of the sedan as it approached the point of collision. Frykberg said that he (Frykberg) gave no signal of his approach to the intersection until about twenty feet therefrom or, again, until an instant before the collision when he saw the Plymouth sedan immediately in front of him. A near-by resident heard no signal. Frykberg gave no testimony that he saw what the deceased was doing or that he saw him at all. He testified merely that the car was moving as above indicated and that it passed through the intersection in front of him.

It appeared that there was a sign on the side of School street twenty feet south of Old Country road directing operators of moving vehicles to stop for through traffic. The sign did not contain the words full stop.” At no point in Frykberg’s testimony did he say, nor is there any other evidence from which any inference may be drawn, that the car of deceased did not stop at or before it reached the traffic sign. In the absence of such evidence, the jury might infer that he did stop since he was presumed to obey the directions if he saw the sign or knew of its presence and of the presence of traffic. There is no evidence in the case that failure to stop, if there was any such failure, was in violation of any ordinance since no ordinance was proven nor did it appear by what authority the sign was erected. If presumed to have been erected by the State Traffic Commission (Vehicle & Traffic Law, § 95-d [Cons. Laws, ch. 71]; Meadows v. Lewis, 235 App. Div. 243), its wording was merely a warning sign to stop for through traffic and not for a “ full stop ” if there was no such traffic present (Cf. Countryman v. Breen, 274 N. Y. 470). Its presence, however, might be considered by the jury, as the court charged, on the question of whether deceased was guilty of contributory negligence. Even though the deceased had an absolute duty to stop (Manard v. Sheppard, 243 App. Div. 265; McMahon v. Halsall, 18 La. App. 1; Washington v. City of Seattle, 170 Wash. 371; Cox v. Bell, 259 Mich. 555; Loizzo v. Conforti, 207 Wis. 129), a point which we do not decide, and there was proof from which it might be found .that he did not stop at the sign, unless his failure to stop was a contributing cause of the accident plaintiff would not be barred from recovery by such violation of duty (Martin v. Herzog, 228 N. Y. 164, 170; Bethancourt v. Bayhi, [La. App.] 141 So. Rep. Ill; Strong v. Ernst, 169 Wash. 617).

There is no evidence warranting any conclusion as matter of law that the deceased was violating paragraph 4 of section 82 of the Vehicle and Traffic Law, which required him to grant the right of way to defendant’s truck. In construing the requirement of that provision the court charged, without exception: “ If the vehicles are so near the intersection as they approach each other that there is a chance of their coming together if they continue at the same rate of speed, then the law gives precedence to the vehicle approaching from the right of the other and the law says that the vehicle approaching from the left must stop, or slow down, so as to give the right of way to the vehicle coming from the right.” Such was the law of the case and the proper rule as laid down by this court {Shuman v. Hall, 246 N. Y. 51, 54, 55). As pointed out in that case, the relative distance the cars were from the intersecting point, the relative speed of the approaching cars, and other applicable facts and circumstances were required first to be found by the jury before it could be determined that the rule should have any application. The deceased was a married man forty-four years of age with two children. He was a bookkeeper, a man of good habits and a steady worker. He was returning home from work at the time of the accident. Both headlights of his car were burning brightly. He had been driving automobiles for upwards of thirteen years and presumably knew the rules of the road. The night was dark, rain was falling, the atmosphere was foggy. There was a visibility of only seventy-five to two hundred feet. Concededly there was no signal of the approach of the truck until a second or two before the collision. Deceased had proceeded into the intersection and was nearly across, over on the right shoulder and nearly out of the normal path of the onrushing truck, when his car was struck at a point back of the front fender by defendant’s truck which the driver had suddenly swerved to the right. The left front corner of the truck hit the other car. The jury had a right to find that the truck was running far in excess of twenty-five miles per hour. It might reasonably be inferred under the conditions obtaining that the deceased did not see the truck at all and that it came upon him at high speed without warning and unexpectedly, or he may have seen it so far away as to lead him to believe that he could safely proceed across the intersection before the truck reached it. Had the truck been swerved to the left when the driver saw the Plymouth car instead of to the right, or had the driver applied his brakes when he was twenty feet from the point of collision, or had he slowed up, all of which he said he. did not do, the accident probably would not have happened and the decision ofx deceased, if he made it, that he had time to cross before the truck reached the intersection, would have been justified. He had a right to assume that before a truck would come at a high rate of speed out of the darkness and the rain and the fog, some warning signal for the crossing would be given and that the track driver would not operate his truck at a greater speed than is allowed by law. Whatever inferences there were to be drawn from the facts and surrounding circumstances were for the jury. There is no evidence from which it may be found, as matter of law, that deceased violated any rule requiring him to give the right of way to defendant’s truck: The question here is whether there was evidence from which the conclusion was imperative that he did violate such a rule. Plaintiff was not required to prove that he did not violate it. '

We conclude there were no facts or circumstances in the case from which it could be said as a matter of law that the deceased violated any controlling law or ordinance or failed to exercise that care and prudence which was required of an ordinarily prudent man under the circumstances. The question of the negligence of deceased as a contributing cause of the accident was for the jury and not for the court.

The evidence presented a question of fact for the jury as to whether the driver of the truck was negligent and whether his negligence was the sole proximate cause of the accident. Beyond what we have already said, we think it unnecessary further to analyze that evidence. Suffice it to say that from the oral evidence and from the physical situation and the surrounding facts and circumstances, there was ample basis for the jury to find that the operator of the truck approached and entered the intersection at a speed far in excess of twenty-five miles per hour, without warning and in a negligent and reckless manner, and without consideration of the conditions then obtaining, and that his failure to exercise the care and prudence required under the circumstances was the sole proximate cause of the accident. The court advised the jury as to the rates of speed permissible under the Vehicle and Traffic Law and charged, without exception, that if it were found that the truck was being operated at a greater speed than those specified the jury might take that into consideration and infer negligent driving on the part of the operator, having in mind the conditions which obtained at the time and place of the accident. Although the driver of the truck had the right of way under the Vehicle and Traffic Law, that gave him no authority to operate his truck carelessly and negligently and without consideration of the circumstances and conditions existing at the time (Shuman v. Hall, supra).

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

Crane, Ch. J., Lehman, O’Brien, Loughran and Finch, JJ., concur; Hubbs, J., taking no part.

Judgment accordingly.


author: O’Bbien, J.

text:
    The People of the State of New York, Respondent, v. Jacob Rueffer, Appellant.

      Submitted November 28, 1938;
    decided January 10, 1939.

      Harry S. Travis for appellant.
    Section 197-f of the Agriculture and Markets Law (Cons. Laws, ch. 69) is not applicable to interstate carriers. (Rueffer v. Department of Agriculture & Markets, 254 App. Div. 388; New State Ice Co. v. Liebmann, 285 U. S. 262; People v. Buffalo Fish Co., 164 N. Y. 83; People v. Bootman, 180 N. Y. 1; People v. Fargo, 137 App. Div. 727; Michigan Public Utilities v. Duke, 266 U. S. 570.) Section 197-f of the statute is invalid. (People v. Visconti, 234 N. Y. 165; People v. Maillard, Inc., 192 App. Div. 201; People v. Ringe, 197 N. Y. 143.)

      Daniel J. McAvoy, District Attorney, for respondent.
    Section 197-f of the Agriculture and Markets Law is applicable to interstate carriers. (Kelly v. State of Washington, 302 U. S. 1; Rueffer v. Department of Agriculture & Markets, 254 App. Div. 388.) Section 197-fc of the statute is constitutional and a valid exercise of the police powers of the State. (Boston & Maine R. R. Co. v. Armburg, 285 U. S. 234; Missouri v. Kansas Natural Gas Co., 265 U. S. 298; Minnesota Rate Cases, 230 U. S. 352; Duncan v. Missouri, 152 U. S. 377; Caldwell v. Texas, 137 U. S. 692.) The penal section, 197-j of article 16-A, is valid and constitutional. (People ex rel. Cosgriff v. Craig, 195 N. Y. 190; People ex rel. Frank v. McCann, 253 N. Y. 221.)
   O’Bbien, J.

The information upon which defendant was tried and convicted alleges that, in transporting coal upon a truck, defendant failed to display upon the vehicle the name of the owner and the word coal.” These facts were proved and they constitute a violation of section 197-f of the Agriculture and Markets Law (Cons. Laws, ch. 69) which provides: All vehicles used in the transportation of coal or coke shall have conspicuously marked with permanent letters on the exterior of the right and left side thereof, in plain view and easily discernible, the name of the owner, together with the words coal and/or coke. The letters of the words coal and/or coke shall be at least seven inches in height and not less than one-half inch in width.”

This case was tried without a jury and appellant urges that that part of the statute which attempts to deprive him of a jury trial is unconstitutional. Section 41 provides that violation of any part of the statute constitutes a misdemeanor and section 197-j provides that any Court of Special Sessions or any Police Court having jurisdiction shall have jurisdiction to try without a jury. These sections of the statute are constitutional. (N. Y. Const, art. VI, § 18; People ex rel. Frank v. McCann, 253 N. Y. 221, 226.)

Appellant stresses the point also that section 197-f is not applicable to interstate carriers. The parties stipulated at the trial that the coal involved in this case was loaded in Pennsylvania and transported into New York. At the time of the transportation of this coal, the statute, as amended by chapter 579 of the Laws of 1937, section 8, was in effect. It provides in part: “No provision of such sections shall apply or be construed to apply to foreign or interstate commerce, except in so far as the same may be effective pursuant to the United States Constitution and to the laws of the United States enacted pursuant hereto ” [thereto]. We have recently decided in Rueffer v. Dept. of Agriculture & Markets (279 N. Y. 16, 21) that this statute shall not be construed to apply if it is in conflict with an act of Congress. In the Chief Judge’s opinion in that case occurs this observation in relation to the statute: “It is clear that the intention was to have it apply to coal coming by trucks over the border.” That intention shall continue to prevail and remain effective until such a time as Congress may occupy this field of legislation and enact contrary provisions. The enactment by which the signs must be inscribed on the trucks cannot be held to be outside the police power. If the Legislature was informed of the practice of transporting “ bootleg ” or stolen coal fr,om Pennsylvania to New York, surely the circumstances are such as to support an exercise of the police power. The fact that interstate commerce may be indirectly or incidentally involved does not deprive a State of that right. (Minnesota Rate Cases, 230 U. S. 352; Boston & Maine Railroad v. Armburg, 285 U. S. 234, 238; Kelly v. State of Washington, 302 U. S. 1, 7; Board of Hudson River Reg. District v. F., J. & G. R. R. Co., 249 N. Y. 445, 456.)

The judgment should be affirmed.

Crane, Ch. J., Lehman, Lottghran, Finch and Rippey, JJ., concur; Hubbs, J., taking no part.

Judgment affirmed.


text:
    The People of the State of New York, Respondent. v. Anthony Romano, Appellant.
    Argued November 30, 1938;
    decided January 10, 1939.

      Sydney Rosenthal for appellant.
    There was no corroboration of any alleged identification of defendant-appellant. (People v. Page, 162 N. Y. 272; People v. Deitsch, 237 N. Y. 300; People v. Downs, 236 N. Y. 306; People v. Taleisnik, 225 N. Y. 489; People v. Plath, 100 N. Y. 590; People v. Shaw, 158 App. Div. 146; People v. Purtell, 243 N. Y. 273; People v. DeMartini, 213 N. Y. 203; Bullard v. Pearsall, 53 N. Y. 230; People v. Hickey, 235 N. Y. 188; People v. Wood, 126 N. Y. 249; People v. Murray, 183 App. Div. 468; People v. O’Farrell, 175 N. Y. 323.) The trial court erred in permitting the District Attorney to waive opening to the jury. (People v. Thomas, 32 Misc. Rep. 170; People ex rel. Jerome v. Court of General Sessions, 112 App. Div. 424; Munro v. State, 223 N. Y. 208; State v. Loeb, 190 S. W. Rep. 299; State v. Florane, 154 So. Rep. 417; State v. Honig, 78 Mo. 249.)

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for respondent.
    There was sufficient legal corroboration. (People v. DeNigris, 157 App. Div. 798; People v. Panyko, 16 N. Y. Crim. Rep. 438; 71 App. Div. 324; People v. Powell, 4 N. Y. Crim. Rep. 585.) There was no error in the People’s case in the waiving of their right to open. (People v. Reilly, 49 App. Div. 218; 164 N. Y. 600; People v. Van Arsdale, 242 App. Div. 545; People v. Van Zile, 73 Hun, 534.)
   Loughran, J.

The appellant stands convicted of rape in the first degree. It was claimed by the People that the prosecutrix had been criminally defiled on a single occasion by each of a group of men. Whether the appellant was one of the perpetrators was in his case the major issue. The prosecutrix identified him as one of her assailants and swore he had raped her when her powers of resistance had been beaten down in an effort to repulse the others.

(1) This testimony needed the support of other evidence (Penal Law, § 2013) which, we think, was lacking. A codefendant was the only witness relied on to corroborate the charge made by the prosecutrix against the appellant. This witness disappointed the People by asserting his inability to remember the occasion described in the indictment. Thereupon the People — in an attempt at impeachment — were permitted to examine the witness respecting an extra-judicial statement previously made by him. Apparently the courts below thought the witness admitted in his testimony that his prior statement had mentioned the appellant to the District Attorney as a joint principal in the crime. We cannot agree to that interpretation of the record. The witness repeatedly denied that in his prior statement he had so named the appellant and we do not find in his testimony any contrary concession.

No inconsistent prior utterance of the codefendant was admissible unless it had been sworn to or subscribed by him. (Bennett v. Crescent Athletic-Hamilton Club, 270 N. Y. 456; Code Crim. Proc. § 8-a; Civ. Prac. Act, § 343-a.) The statement as to which he was examined was not offered in evidence nor was its form or content disclosed. Consequently there is no occasion to consider whether sufficient support of the prosecutrix would have been supplied by an admissible self-contradictory statement of the witness — a statement the assumed tenor of which would have established his status as an accomplice. (See 2 Wigmore on Evidence [2d ed.], § 1018; Code Crim. Proc. § 399,.) At all events, there was on this record a failure of support for the testimony which the prosecutrix gave against the appellant.

(2) Over objection by the appellant, the People were allowed to waive any opening of the case to the jury. We cannot countenance this departure from long standardized forms of law in trials for felony. (See Code Crim. Proc. § 388; People v. Benham, 160 N. Y. 402, 432; 1 Chitty on Criminal Law [5th Am. ed.], p. 555. The different holding in Johnson v. Commonwealth [111 Va. 877] turned upon the text of a statute quite unlike our own.) While the reading of a detailed indictment might conceivably serve the purpose of an opening (cf. People v. Reilly, 49 App. Div. 218; 164 N. Y. 600), we are not disposed to encourage even that procedure.

The judgments should be reversed and a new trial ordered.

Crane, Ch. J., Lehman, O’Brien and Finch, JJ., concur; Ripfey, J., concurs on the second ground only; Hitbbs, J., taking no part.

Judgments reversed, etc.


author: Finch, J.

text:
    Guaranty Trust Company of New York, as Trustee, Appellant, v. Doris Lewis, Respondent, Impleaded with Others.

      irgued November 30, 1938;
    decided January 10, 1939.

      Otis T. Bradley and Andrew Y. Rogers for appellant.
    The trustee had power to sell the bonds even assuming that the express power of sale was not incorporated in .the secondary trust. (Toronto General Trusts Co. v. C.} B. & Q. R. R. Co., 64 Hun, 1; 138 N. Y. 657; Guaranty Trust Co. v. U. S. Steel Corp., 107 Misc. Rep. 720; 187 App. Div. 889; 226 N. Y. 693; Matter of Quinby, 134 Misc. Rep. 296; Matter of Turner, 156 Misc. Rep. 68; 246 App. Div. 741; Sutherland v. Cooke, 1 Collyer, 498.) The trustee was authorized to sell the bonds under the express power of sale which was incorporated in the secondary trust freed from the limitation of the grantor’s consent. (Phillips v. Davies, 92 N. Y. 199; Sohier v. Williams, 22 Fed. Cases, 772; Loeb v. Hasslacher, 209 App. Div. 58; Easy Payment Property Co. v. Vonderheide, 123 Ky. 352; Bigelow v. Tilden, 52 App. Div. 390; Koch v. Robinson, 26 Ky. Law Rep. 969; Guaranty Trust Co. v. U. S. Steel Corp., 107 Misc. Rep. 720; 187 App. Div. 889; 226 N. Y. 693; McCarter v. Crawford, 245 N. Y. 43; McDermott v. Lawyers’ Mortgage Co., 232 N. Y. 336; Matter of Fordham, 235 N. Y. 384; Matter of O’Dell, 124 Misc. Rep. 76.)

      Daniel A. Shirk and Milton A. Goldiner for respondent.
    Plaintiff had no implied power to sell. (Kissam v. Dierkes, 49 N. Y. 602; Barber v. Cary, 11 N. Y. 397; Gulick v. Griswold, 160 N. Y. 399; Wells v. Brooklyn Elevated R. R. Union Co., 121 App. Div. 491; 193 N. Y. 641; Pawles v. Jordan, 62 Md. 499; Peirsol v. Roop, 56 N. J. Eq. 739; O’Connor v. Waldo, 83 Hun, 489; Suarez v. de Montigny, 1 App. Div. 494; 153 N. Y. 678.) The trustee had no absolute express power to sell the securities set aside for the secondary trust. (65 C. J. p. 499; 69 C. J. p. 831.)
   Finch, J.

This is an action to settle the account of the plaintiff as trustee of an inter vivas trust. The question involved is the power of plaintiff trustee as a matter of law to sell five $1,000 Great Northern Railway bonds.which the_settlor had deposited with the trustee as part of the original trust corpus and which the trustee, pursuant to the trust agreement, had allocated to constitute the. corpus of the subsequent trust for the defendant-respondent.

The facts are as follows: In 1924 plaintiff, Guaranty Trust Company, was named as trustee in a trust indenture whereby one Fannie D. Lewis created a trust for her own life, consisting of certain securities owned by her. The settlor died within one month after the trust was established and, under the terms of the trust agreement, the trustee paid over all the securities in the trust to her son, Herbert D. Lewis, with the exception of five $1,000 Great Northern Railway seven per cent bonds, which it continued to hold in trust for the granddaughter of the settlor, the defendant, Doris Lewis. The trust indenture provided that upon the termination of the original trust, by reason of the death of the settlor, the trustee was “ to set aside from the property and securities then in its possession and any accumulated income there may be, the sum of Five Thousand ($5,000) Dollars in money, or securities or property or both then in its possession, which in its judgment shall fairly and justly equal that sum; to hold said money, or property or securities or both, in trust nevertheless, upon the same terms and conditions as are herein set forth with reference to the trust hereinbefore created, to pay over the income therefrom to my granddaughter Doris Lewis * * Pursuant to this direction, the $5,000 worth of bonds were allocated to this secondary trust upon the death of the settlor. Shortly thereafter, the trustee sold these bonds and with the proceeds bought guaranteed mortgage certificates.

In this accounting proceeding the defendant, Doris Lewis, objected to the account and interposed counterclaims. Thereafter defendant moved for an order striking out plaintiff’s reply to the first counterclaim and for judgment against the plaintiff upon this counterclaim, and also for judgment on the pleadings under rule 112 of the Rules of Civil Practice, on this counterclaim. On this motion judgment was directed in favor of defendant on the counterclaim, which was for the value of the $5,000 Great Northern Railway bonds, and the interest the defendant would have received if the trustee had continued to hold the bonds. It was the theory of the counterclaim that the trustee had no power to sell the bonds after the allocation was made. The trustee in opposition relied upon a provision of the trust deed which reads as follows:

“ Third. The Trustee is authorized and empowered to retain, subject to the provisions hereof, any and all of the property and securities hereinbefore described in their present form * * *

“ The Trustee is likewise hereby authorized and empowered, from time to time, to invest and reinvest such property and securities with full power of sale in connection therewith, in such securities as it may deem suitable for the trust, and shall not be restricted to securities of the character authorized by the laws of the State of New York for trust investments, such power of sale, however,_to be exercised only subject to the consent of the said party of the first part.”

The Appellate Division unanimously affirmed the judgment in favor of defendant on the counterclaim, and the appeal is here by permission of this court.

In the absence of a provision in the trust indenture authorizing the trustee to retain the securities which were non-legals, the trustee would have been under a duty to dispose of them within a reasonable time, unless special circumstances warranted retention. Ordinarily a trustee may not retain securities in which he would not have been permitted to invest. (Toronto General Trusts Co. v. C., B. & Q. R. R. Co., 64 Hun, 1; affd., on opinion below, 138 N. Y. 657; Matter of Wotton, 59 App. Div. 584; affd., 167 N. Y. 629; Matter of Douglas, 60 App. Div. 64, 67; see Matter of Weston, 91 N. Y. 502; King v. Talbot, 40 N. Y. 76; Matter of Taylor, 277 Penn. St. 518; Matter of Leitsch, 185 Wis. 257.)

Where securities are given to a trustee with no directions to hold (Mertz v. Guaranty Trust Co., 247 N. Y. 137), but with power to retain, and there are non-legal securities among them and the instrument creating the trust

neither empowers nor forbids a sale, the trustee has an implied power of sale of the non-legals for the purpose of reinvesting the proceeds in such securities as are authorized by law. (Toronto General Trusts Co. v. C., B. & Q. R. R. Co., 64 Hun, 1; affd., on opinion below, 138 N. Y. 657; Guaranty Trust Co. v. U. S. Steel Corp., 107 Misc. Rep. 720; affd., 187 App. Div. 889; affd., 226 N. Y. 693.) In the Toronto case the court pointed out: The rule in England and in this State, which forbids a trustee to invest trust funds in the securities of railroads and other corporations is a most salutary one; and we think the rule is, or ought to be, that a trustee who receives trust property, invested in such securities, should, if he is not required to sell the same, at any fate, have the right to make such sale, and invest the proceeds in the same manner that he would be required to do if the trust property received by him consisted of money ” (p. 8).

Language showing a different intention may make inapplicable the above principles.

We pass then to an examination of the trust instrument. Since there was a power to retain, there was no obligation upon the trustee to sell. In fact, in the primary trust, during the life of the settlor while full power of sale and power to invest and reinvest was given, such sale could only be made with the consent of the settlor.

What was the situation after the death of the settlor? What did the trust agreement provide? The trustee was directed to set up a trust out of the money or securities or property in its possession upon the death of the settlor, and to hold it upon the same terms and conditions as are herein set forth with reference to the trust herein-before created.” The trust hereinbefore created ” authorized the retention of the Great Northern bonds, and, as noted, it also authorized their sale, such power of sale, however, to be exercised only subject to the consent of the said party of the first part.” The party of the first part, the settlor, was dead. Does this mean that the power of sale could not be exercised, since her consent could not be obtained? In other words, did this settlor intend to prohibit a power of sale after her death in the conduct of this secondary trust or did she grant an express power of sale freed from any consent? As already noted, the settlor had granted in the primary trust the broadest possible power of sale subject only to her consent. After her death she expressly provided' that the secondary trust for her granddaughter, then nine years of age, ■ should be held “ upon the same terms and conditions * * This was not a case where the consent was to be exercised by a person other than the settlor but by the settlor herself, and so by no possibility could outlast her life. Did the settlor intend to'exclude entirely from the secondary trust all the provisions of the primary trust concerning the power of sale, or did she intend to incorporate an express power of sale freed from the limitation of the consent of the settlor? If no part of the clause dealing with the full power of sale was incorporated into the secondary trust, then there was an implied power to sell non-legals, unless, such power was affirmatively forbidden. • (Toronto General Trusts Co. v. C., B. & Q. R. R. Co., supra.)

We must, therefore, ascertain whether the consent having become impossible the power of sale was wholly extinguished, which is the contention of the respondent, or whether there was incorporated into this secondary trust the power of sale freed from the limitation of the consent of the grantor.

An examination of the language of the entire instrument indicates the latter intention. At the time of the execution of the trust instrument the grandchild was, as already noted, not quite nine years old. The settlor did not then know how soon it would be necessary to set up the secondary trust or how long it would continue. It might then continue, and as a matter of fact did continue, for about twelve years, since the settlor died within one month after the execution of the trust instrument. With the exception of an annuity agreement, the entire primary trust consisted of corporate stocks and bonds. Presumably recognizing the fluctuating quality of such securities the grantor had expressly provided a full power of sale and resale subject to her own consent. Since the grantor had provided that the corpus of the secondary trust should be made up of the securities chosen by the trustee alone after her death, would not the natural and normal provision be to provide for a similar power of sale without any consent since the settlor was dead and the beneficiary, a minor not quite nine years old? (Cf. Koch v. Robinson, 26 Ky. Law Rep. 969.)

Both primary and secondary trusts authorized the trustee to retain all of the property and securities in their present form.” This power to retain read in the light of this whole instrument would seem to make implicit a power to sell. (Cf. Guaranty Trust Co. v. U. S. Steel Co., 107 Misc. Rep. 720; affd., 187 App. Div. 889; affd., 226 N. Y. 693.) If, as respondent contends, this trustee had absolutely no power of sale, is it not pertinent to inquire the need for a provision authorizing the trustee to retain?

A trust instrument of this character, presumably to endure for so long a time, imports care in its draftsmanship. We are, therefore, required to examine carefully the words and phrases used. In so doing, we find that the words used in paragraph third were not those of condition but of limitation. The grantor provided that the full power of sale was “ to be exercised only subject to the consent of the said party of the first part.” Not “ conditioned upon ” but-" subject to.” What the draftsman said, in effect, was, that so long as the settlor lived the power of sale was subject to a limitation or charge which being removed by the settlor’s death, left the power, which was to continue, free from the charge. Limitations or charges differing from conditions do not defeat the power by their expiration. (Cf. Matter of Fordham, 235 N. Y. 384.) When the limitation expires, the power is free. Respondent relies upon cases wherein the court found an intent to create a condition to the exercise of the power.

A proper construction of this trust instrument shows that when the settlor provided that the corpus of the secondary trust was to be held upon the same terms and conditions as the primary trust, she intended to exclude from the secondary trust only so much of the terms as were rendered nugatory by her death. The trustee, therefore, was expressly authorized to sell the Great Northern bonds. It is not necessary to answer at length the contention that there was here a gift of particular securities which were to be held in kind in the secondary trust until the grandchild came of age and that therefore there was no power of sale. Since the trust instrument provided that the trustee was to set aside at the death of the settlor the sum of $5,000 from property, securities and money then in its possession, and since it was required to pay over income therefrom to the grandchild, it would not be a reasonable construction that the corpus of the trust so selected must be kept intact until the grandchild became of age and then handed over in kind.

It is true that a different rule has been applied where the trust corpus consisted of real estate. (Kissam v. Dierkes, 49 N. Y. 602; Barter v. Cary, 11 N. Y. 397; see Gulick v. Griswold, 160 N. Y. 399.) But the difference between the nature of real property and securities or personal property, requires the application, as in many other instances, of different rules.

The judgments should be reversed, with costs in all courts, and judgment granted for the- plaintiff dismissing the first counterclaim of the defendant-respondent, with costs.

Lehman, O’Brien and Loughran, JJ., concur; Crane, Ch. J., concurs in result: Rippey, J., dissents; Hubbs, J., taking no part.

Judgment accordingly.


author: Hubbs, J. Crane, Ch. J.

text:
    Margaret G. Davis et al., Appellants, v. Modern Industrial Bank et al., Defendants, and Charles H. Griffiths, Respondent.

      Submitted December 2,1938;
    decided January 10, 1939.

      Milton M. Eisenberg, Ralph Weller and Hyman Bushel for appellants.
    Defendant-respondent’s assignment is inferior as against the named beneficiary even though the assured did reserve the right to change the beneficiary. (Schoenholz v. New York Life Ins. Co., 234 N. Y. 24; Muller v. Penn Mut. Ins. Co., 161 Pac. Rep. 148; Johnson v. N. Y. Life Ins. Co., 138 Pac. Rep. 414; Anderson v.
      Broad Street Nat. Bank, 105 Atl. Rep. 599; Reid v. Durboraw, 272 Fed. Rep. 99; Greenfield v. Massachusetts Mut. Life Ins. Co., 253 App. Div. 51.) The rights of a named beneficiary in a fife insurance policy where the right of revocation is reserved are more than inchoate or intangible and are in fact substantial. (Rosenblum v. Manufacturers Trust Co., 270 N. Y. 79; Prudential Ins. Co. v. Stone. 270 N. Y. 154.)

      Charles H. Griffiths, in person, and Pearce H. E. Aul for respondent.
    Where the right to change the beneficiary has been reserved, the insured may dispose of the proceeds of a life policy by assignment without the consent of the beneficiary. (Moskowitz v. Equitable Life Assur. Society, 252 App. Div. 75; Wagner v. Theriot, 203 App. Div. 757; 236 N. Y. 588; Rawls v. Penn Mut. Life Ins. Co., 253 Fed. Rep. 725; Olmsted v. Keyes, 85 N. Y. 593; Lowenstein v. Koch, 165 App. Div. 760; St. John v. American Mut. Life Ins. Co., 13 N. Y. 31; Barbour v. Equitable Life Assur. Society, 174 App. Div. 759; 225 N. Y. 675; Maurice v. Travelers’ Ins. Co., 121 Misc. Rep. 427; Cavangaro v. Thompson, 78 Misc. Rep. 687; Johnston v. Scott, 76 Misc. Rep. 641; Mente v. Townsend, 68 Ark. 391; Mutual Ben. Life Ins. Co. v. Clark, 81 Cal. App. 546; Cheek v. Rice, 30 Ga. App. 779; Farmers State Bank v. Kelley, 155 Ga. App. 733; Henrich v. Prior, 84 Ind. App. 211; Wirgman v. Miller, 98 Ky. 620; First Nat. Bank v. Security Mut. Life Ins. Co., 283 Mo. 336; Lemley v. McClure, 122 Penn. Super. Ct. 225.)
   Hubbs, J.

Clarence M. Davis, on June 1, 1932, procured from the Prudential Life Insurance Company a $5,000 straight life policy of insurance on his own life, dated that day. His wife, Eleanor H. Davis, was the named beneficiary. The policy contained clauses reserving to the insured the right to change the beneficiary and to assign the policy. The insured, Clarence M. Davis, died October 26,1936.

The plaintiffs commenced an action against the insurance company to recover the proceeds of the policy. There being other claimants, the insurance company impleaded the several claimants and paid the proceeds of the policy into court to the credit of the action. The respondent Griffiths by answer alleged that the insured, Clarence M. Davis, by an instrument in writing, assigned the policy to him as his interest may appear ” to protect him on account of his indorsement of the assured’s note, paid by respondent, upon which there remained due and unpaid to respondent $3,357.25, and which sum respondent contends he became entitled to receive from the proceeds of the policy. There is no claim that the beneficiary paid the premiums on the policy or that she was named as beneficiary pursuant to the terms of a contract.

The plaintiffs moved for summary judgment, which was granted at Special Term, and defendant Griffiths’ counterclaim was dismissed. The Appellate Division reversed and granted summary judgment in favor of defendant Griffiths for the amount of his counterclaim. The facts are not in dispute. Only a very interesting question of law is involved. That question is whether the rights of the beneficiary named in the policy are superior to the rights of the assignee of the policy, the assignment having been taken from the insured in good faith for a valuable consideration but without the knowledge or consent of the beneficiary named in the policy.

The right to change the beneficiary named in the policy was reserved by the insured; also the right to assign the policy. The policy provided:

If the right to change the Beneficiary has been reserved, the Insured may at any time while this Policy is in force, by written notice to the Company at its Home Office, change the Beneficiary or Beneficiaries under this Policy, such change to be subject to the rights of any previous assignee and to become effective only when a provision to that effect is endorsed on or attached to the Policy by the Company, whereupon all rights of the former Beneficiary or Beneficiaries shall cease.”

“ Any assignment of this Policy must be in writing,.,/ and the Company shall not be deemed to have such knowledge of such assignment unless the original or a duplicate thereof is filed at the Home Office of the Company. The Company will not assume any responsibility for the validity of an assignment.”

It_is not questioned that the assignment in question^) was in writing and duly filed with the company at its C home office as required by the terms of the policy. The J) fact that the beneficiary named in the policy was the wife of the insured does not affect the question here involved. It is urged by the appellants that the only interest taken by respondent Griffiths under the assignment was that which the assignor, the insured, po sessed, i. e., to have his estate take under the policy in case of the death of the beneficiary before the death of the insured; also the right to appoint a new beneficiary in case the insured survived the beneficiary, or to change the beneficiary in the exact method provided in the policy. The position of the respondent is that the written assign- • ment conveyed to him an interest in the proceeds of the policy sufficient to require payment to him of the amount due him from the insured.

Concededly an assignment of a policy by the insured will not convey any interest as against the beneficiary / named in the policy unless the right to change the beneficiary is reserved therein. It makes no difference what the interest of the beneficiary is denominated, as a vested interest or by some other name. In any event it is such an interest that the beneficiary cannot be deprived of it without consent unless such right is reserved in the policy. (14 R. C. L. p. 1387; Shipman v. Protected Home Circle, 174 N. Y. 398, 407.) That is the law in every jurisdiction in this country except Wisconsin. (Boehmer v. Kalk, 155 Wis. 156; Richards on The Law of Insurance [4th ed.], p. 557.) That rule is known as the vested interest rulé. It was because the law had become settled to the effect that an insured could not change the beneficiary or assign a policy that the insurance companies, in answer to an extensive demand therefor, provided in some policies that the insured reserved the right to change the beneficiary and to assign the policy. (31 Yale Law Journal, p. 358.) The very purpose of reserving the right to change the beneficiary and to assign the policy was to overcome the old rule that the beneficiary had a valuable interest which could not be incumbered or changed by the insured without the consent of the beneficiary. When those privileges are reserved in an attempt by an insured to retain control of the policy for which he has paid, the courts have determined that the interests of the parties are affected in either of two ways.

The first view is that the insured takes no rights in the policy during the life of the beneficiary; that he has merely the power to divest the named beneficiary of his rights and to vest those rights in a new beneficiary; that he has power only to revoke the appointment already made and make a new appointment, such power to be exercised only in the manner provided in the policy. That rule is sometimes spoken of as the New Jersey rule. (Sullivan v. Maroney, 77 N. J. Eq. 565.) The second view is that the insured, by reserving the right to change the beneficiary and to assign the policy, retains the beneficial ownership of the policy during life, and that the naming of a beneficiary constitutes only an instruction to ¡ the company to pay at his death to the person named 'i unless such instruction is changed by the insured. Under this view of the law the beneficiary has a mere expectancy or vested interest subject to be divested or an inchoate right depending entirely upon the will of the insured. (Slocum v. Met. Life Ins. Co., 245 Mass. 565, 570; Quist v. Western & Southern Life Ins. Co., 219 Mich. 406.) The beneficiary has no interest in the form provided in the policy for assigning it, that being a provision inserted for the benefit of the company which it can refuse to assert, sometimes improperly called a waiver. (See Richards on The Law of Insurance [4th ed.], pp. 565, 566.)

There is no controlling decision in this jurisdiction on the question here involved. In various opinions there may be found statements which indicate conflicting views. We are at liberty, therefore, to adopt the view which seems to us to be supported by the best reasons. The following cases have adopted the so-called vested interest or New Jersey rule and hold that a beneficiary cannot be deprived of his interest by a change of beneficiary, or his interest incumbered, without his consent even where the insured has reserved the right to change the beneficiary and to assign the policy unless the change is made in the exact form provided in the policy: Barbin v. Moore (85 N. H. 362; 83 A. L. R. 62); Strickland v. Dyer (192 Ark. 462); Sullivan v. Maroney (supra); Neary v. Met. Life Ins. Co. (92 Conn. 488); Nuller v. Penn Mut. Life Ins. Co. (62 Col. 245); Farra v. Braman (171 Ind. 529); Douglas v. Equitable Life Assur. Society (150 La. 519); Goldman v. Moses (287 Mass. 393).

Many other cases hold that where the right to change the beneficiary has been reserved by the insured, he becomes the beneficial owner of the policy and may do with it as he pleases, and that the beneficiary has only an expectancy or a vested interest which may be divested by his death previous to that of the insured, or by the exercise by the insured of his reserved right to change the beneficiary. (Bank of Belzoni v. Hodges, 132 Miss. 238; Merchants Bank v. Garrard, 158 Ga. 867; Mente v. Townsend, 68 Ark. 391; Mutual Benefit Life Ins. Co. v. Clark, 81 Cal. App. 546; Henrich v. Prior, 84 Ind. App. 211; Jenkins v. Union Cent. Life Ins. Co., 112 Kan. 552; Crice v. Illinois Life Ins. Co., 122 Ky. 572; Douglas v. Equitable Life Assur. Society, 150 La. 519; First Nat. Bank v. Security Mut. Life Ins. Co., 283 Mo. 336; Stevens v. First Nat. Bank, 117 Okla. 148; McNeil v. Chinn, 45 Tex. Civ. App. 551; Equitable Life Assur. Co. v. Mitchell, 248 Ill. App. 401; Taylor v. Southern Bank & Trust Co., 227 Ala. 565; Potter v. Northwestern Mut. Life Ins. Co., 216 Iowa, 799; Wentworth v. Equitable Life Assur. Soc., 65 Utah, 581; Antley v. New York Life Ins. Co., 139 S. C. 23 [expressly overruling earlier cases in that State which held to the contrary]; Lemley v. McClure, 122 Pa. Super. Ct. 225 [expressly refusing to follow the earlier contrary decision in Barner v. Lyter, 31 Pa. Super. Ct. 435].)

The cases in the Federal courts are to the effect that a beneficiary does not have an interest in a life insurance policy superior to that of an assignee where the right to change the beneficiary and to assign the policy is reserved. (Ætna Life Ins. Co. v. Phillips, 69 Fed. Rep. [2d] 901; Matter of Hogan, 194 Fed. Rep. 846; Malone v. Cohn, 236 Fed. Rep. 882; Rawls v. Penn. Mut. Life Ins. Co., 253 Fed. Rep. 725 [although there was a dissenting opinion in that case a petition for a writ of certiorari was denied, 249 U. S. 614].)

In those jurisdictions it has been held that the provisions of a policy providing the form and procedure for assigning a policy are provisions inserted in the policy for the benefit of the insurance company, and if not insisted on by the company cannot be availed of by the beneficiary. (Richards on The Law of Insurance, p. 566.) There is a marked distinction between the right reserved by an insured to change the beneficiary and the right to assign the policy. (Mutual Benefit Life Ins. Co. v. Swett, 222 Fed. Rep. 200; Ehlerman v. Bankers Life Co., 199 Iowa, 417; Mutual Benefit Life Ins. Co. v. Clark, supra.) In the case at bar no attempt was made to change the beneficiary.

The leading textbook writers and writers of law review articles favor the view last expressed. (Cf. Richards on The Law of Insurance, p. 564; Vance on The Law of Insurance, p. 559; 6 Couch, Cyc. of Ins. Law, pp. 5233, 5234; 2 Cooley’s Briefs on Insurance [2d ed.], p. 1805; 37 C. J. p. 434; 14 R. C. L. p. 998; 60 A. L. R. p. 191; “ The Beneficiary’s Interest in a Life Insurance Policy ” by Prof. Vance, 31 Yale L. J. p. 343; 73 U. of Pa. L. Rev. p. 295; 85 U. of Pa. L. Rev. p. 203; 32 Col. L. Rev. p. 1071; 11 N. C. L. Rev. p. 169.)

It is a matter of common knowledge that since the depression of 1929 the use of fife insurance policies as collateral upon which to raise much needed funds has become more common. (Cf. “ Power of Pledgee of Life Insurance Policy to Exercise Surrender Options,” 48 Yale L. J. 315.)

“It is desirable that the insured should have the opportunity of making free commercial use of his life insurance as available property, for it may often be convenient to secure money, by loan or otherwise, upon it.” (Richards on The Law of Insurance [4th ed.], p. 678.)

Appellants rely heavily upon the case of Schoenholz v. New York Life Ins. Co. (234 N. Y. 24). The decision in that case does not tend to sustain their contention, although there are expressions in the opinion which, standing alone, are susceptible of the construction contended for by the appellants. In that case the insurer defended the action brought by one claiming to have been substituted as beneficiary, in place of the beneficiary named in the policy, by an oral agreement. Its defense was_based upon the ground “ that no proper steps were ever taken, as might have been, to substitute her as a beneficiary.” In the opinion -it was said: “ Plaintiff, therefore, must rely for recovery upon a designation of herself in the place of the original beneficiary and this she neither shows nor excuses.” The court held that the insurance company “ has a right to insist that there shall be compliance with the provisions of its policy.” The plaintiff, having failed to prove compliance with the provisions of the policy applicable in securing a change of beneficiaries, and that defense having been interposed by the insurance company, the sole decision of the court was that the plaintiff could not recover. The court did not decide that, if, as in the case at bar, there had been a written assignment based upon a valuable consideration, filed with the insurance company as required by .its policy, and the company had refused to defend, then the beneficiary might have successfully done so.

It seems to us that upon principle as well as weight of authority the Appellate Division has reached the correct conclusion and that the insured, having reserved the right to change the beneficiary and assign the policy, did all that the law required him to do to constitute a valid transfer of the proceeds of the policy to the assignee, to the extent of the indebtedness thereby secured, in the absence of objection on the part of the company. There is some authority in this court sustaining the view of the Appellate Division. (Wagner v. Thieriot, 236 N. Y. 588, affg., 203 App. Div. 757, on the opinion below; Travelers Ins. Co. v. Healey, 25 App. Div. 53; affd., on opinion below, 164 N. Y. 607 [also in Supreme Court]; Hoefler v. Whelen, 255 App. Div. 321; Moskowitz v. Equitable Life Assur. Soc., 252 App. Div. 75.)

From an every day, practical standpoint it is desirable to hold that an assignee of a policy containing a clause permitting a change of beneficiary and an assignment of the policy secures a right in the proceeds of the policy superior to the rights of the named beneficiary. If an assignee, in the absence of the consent of the beneficiary, does not obtain such right it will be practically impossible for an insured to borrow on a policy in time of need of financial aid in those cases where compliance with the form prescribed in the policy cannot be followed. No bank or individual would be likely to lend on the security of a policy where the right to enforce the reduction of the security to cash would only mature in case the insured outlived the beneficiary, and where the continued life of the policy depends upon the payment of the annual premium. As stated in the case of Matter of Whiting (3 Fed. Rep. [2d] 440, 441): To hold that the beneficiary of such policy has a vested interest would be tantamount to destroying the changed beneficiary ’ provisions of the policy itself.” (Cf. Vance on Law of Insurance [2d ed.], p. 646; 48 Yale L. J. 315.)

That the question is a practical one is illustrated by the large number of decisions involving the issue.

The judgment should be affirmed, with costs."

Crane, Ch. J.

(dissenting). The policy as stated in the opinion provided: * * * such change to be subject to the rights of any previous assignee and to become effective only when a provision to that effect is endorsed on or attached to the Policy by the Company, whereupon all rights of the former Beneficiary or Beneficiaries shall cease.” The opinion fails to state that the assignee failed to procure the indorsement required to make the assignment effective. Judge Hubbs states that the indorsement is for the benefit of the company and may be waived. If this be so then it rests arbitrarily with the insurance company whether the beneficiary or assignee be paid. The better law, in my judgment, is to take agreements as they are written and made by the parties. Anybody reading the clear language, that no assignment is to be effective until the assignment is indorsed on or attached to the policy by the company, would naturally think that it meant what it said.

I dissent.

Lehman, O’Brien, Loughran and Finch, JJ., concur with Hubbs, J.; Crane, Ch. J., dissents in opinion in which Rippet, J., concurs.

Judgment affirmed.


author: Hxjbbs, J.

text:
    Arthur M. Forte, as Administrator of the Estate of Robert Forte, Deceased, Appellant, v. City of Albany et al., Defendants, and New York Central Railroad Company et al., Respondents. Joseph Kuttler, as Administrator of the Estate of John Kuttler, Deceased, Appellant, v. Same, Defendants, and Same, Respondents. Henry Swanker, Appellant, v. Same, Defendants, and Same, Respondents. Charles A. Keefe, Appellant, v. Same, Defendants, and Same, Respondents.

      Argued December 2, 1938;
    decided January 10, 1939.

      Alexander Diamond for appellants.
    The plaintiffs proved a prima facie case against the defendants-respondents, and it was error to grant defendants’ motion to dismiss plaintiffs’ complaints. (Cohen v. Consolidated Gas Co., 137 App. Div. 213; 202 N. Y. 578; Faber v. City of New York, 213 N. Y. 411; Dzkowski v. Reynoldsville Carting Co., 216 N. Y. 173; Kraus v. Birnbaum, 200 N. Y. 130; Schwarzbaum v. Third Ave. R. R. Co., 54 App. Div. 164; Rabinowitz v. Solomon, 221 App. Div. 366.) Defendant railroad company was negligent in locating and maintaining the steel pillar of the old bridge so that it constituted an unreasonable and dangerous obstruction on the highway. (Cooke v. Boston & L. R. Corp., 133 Mass. 185; Lunn v. Andrews, 268 N. Y. 538; Stern v. International Ry. Co., 220 N. Y. 284; Lambert v. Westchester Electric R. R. Co., 191 N. Y. 248; McGettigan v. N. Y. C. R. R. Co., 268 N. Y. 66; Haslam v. State, 4 N. Y. Supp. [2d] 59; D., L. & W. R. R. Co. v. Buffalo, 158 N. Y. 266; Hatch v. Syracuse, B. & N. Y. R. R. Co., 50 Hun, 64; Postal Teleg. Cable Co. v. Young, 172 Ky. 576; Wolfe v. Erie Tel. & Tel. Co., 33 Fed. Rep. 320; Schafer v. Mayor, 154 N. Y. 466.) Defendant railroad company was negligent in failing to provide lights on its pillars, and in creating a “ dark pocket ” hiding the pillar, ramp and other defects on the highway. (Allen v. Buffalo, R. & P. Ry. Co., 151 N. Y. 434; Barrett v. Southern Pacific Co., 207 Cal. 154; State ex rel. Springfield v. Cox, 327 Mo. 152; McKim v. Philadelphia, 217 Penn. St. 243; Kaplan v. Herman, 232 App. Div. 513; Taylor v. City of Albany, 239 App. Div. 217; 264 N. Y. 539; McGettigan v. N. Y. C. R. R. Co., 268 N. Y. 66; Annino v. City of Utica, 276 N. Y. 192; Durr v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 320.) Defendant railroad company was negligent in failing to provide lights, guards or adequate warnings in view of the dangerous conditions and obstructions it created on the highway. (Deming v. Terminal Railway, 49 App. Div. 493; 169 N. Y. 1; Tinker v. N. Y., O. & W. Ry. Co., 157 N. Y. 312; Place v. Delaware, L. & W. R. R. Co., 157 App. Div. 24; Durr v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 320; Koehler v. City of New York, 262 N. Y. 74; Annino v. City of Utica, 276 N. Y. 192; McGettigan v. N. Y. C. R. R. Co., 268 N. Y. 66.) The negligence of the defendant railroad company was one of the proximate causes of the plaintiffs’ injuries. (Sweet v. Perkins, 196 N. Y. 482; De Haen v. Rockwood Sprinkler Co., 258 N. Y. 350; Ivory v. Town of Deerpark, 116 N. Y. 276; Finkle v.
      Bolton Landing Lumber Co., 148 App. Div. 500; Gibney v. State, 137 N. Y. 1; Stern v. International Ry. Co., 220 N. Y. 284; Lambert v. Westchester El. R. R. Co., 191 N. Y. 248; O’ Neill v. City of Port Jervis, 253 N. Y. 423; Carlock v. Westchester Lighting Co., 268 N. Y. 345.) Plaintiffs established a prima facie case of negligence and nuisance against the defendant contractor. (Charlock v. Freel, 125 N. Y. 357; Storrs v. City of Utica, 17 N. Y. 104; McCafferty v. S., D. & P. M. R. R. Co., 61 N. Y. 178.) Plaintiffs’ proof of negligence and nuisance against the defendants-respondents was sufficient to warrant its submission to the jury. (Khoury v. Saratoga County, 267 N. Y. 384; Durr v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 320; Annino v. City of Utica, 276 N. Y. 192.)

      P. C. Dugan for respondents.
    Plaintiffs failed to prove any negligence against the defendants-respondents causing or contributing to the accident. (Weis v. L. I. R. R. Co., 262 N. Y. 352; Palsgraf v. L. I. R. R. Co., 248 N. Y. 339; Gambon v. City of New York, 151 Misc. Rep. 201; Sturman v. State, 244 App. Div. 865; 269 N. Y. 627; Bailey v. Bell Tel. Co., 147 App. Div. 224; Ring v. City of Cohoes, 77 N. Y. 83.)
   Hxjbbs, J.

At about two o’clock a. m., on December 29, 1934, an accident occurred involving an automobile being driven on Central avenue in the city of Albany, a heavily traveled street. Two of the occupants of the automobile were killed and two injured. This is an action to recover damages caused,by the alleged negligence of the defendants. The complaint was dismissed by the trial court and the judgment was affirmed by the Appellate Division, two justices dissenting.

The determination of this appeal depends largely upon the physical situation existing at the place of the accident. For many years the tracks of the defendant railroad company had been carried over Central avenue, which extends east and west, on an overhead bridge supported by three parallel rows of steel pillars, one on the northerly side of the Street, one on the south of the roadway between the roadway and what was formerly the old trolley roadbed, the third on the south side of the trolley roadbed. The roadway, sixteen feet wide, ran underneath the bridge between the most northerly row of pillars and the row north of the old trolley roadbed. The roadway was made of brick. It might have been wide enough to take care of traffic when constructed, but there had been a great change in traffic by May, 1934, when the Public Service Commission made an order directing the railroad to construct a new bridge, on the ground that public safety demanded it, pursuant to plans which provided for a bridge to span a roadway fifty-six feet wide instead of sixteen feet, the width of the old roadway. The new bridge was designed to be adjacent to the old one and east thereof. The railroad contracted with the defendant William M. - Ballard, Inc., to construct the new bridge. At the time of the accident in question the new bridge had been completed, so that trains were being operated over it, but the old bridge was still in place. The highway extending under the old and new bridges was covered by the bridges for a longer distance than formerly, owing to the width of the new bridge which was constructed immediately east of the old bridge and on the same level. To one approaching on Central avenue from the east the structure looked like one bridge over the roadway. A new granite block pavement fifty-six feet wide had been constructed on Qentral avenue from a point about three thousand feet east of the bridge to a point a few feet east of the new bridge. Under the old and new bridges the old pavement sixteen feet wide continued in use. Where the new pavement ended east of the new bridge there was a sudden rise of six inches from the level of the new pavement to the roadbed just west. Between the new pavement and the brick pavement a space of a few feet was covered with gravel with a top dressing of tar.

As the automobile approached the bridge from the east Central avenue was well lighted but the space under the bridge looked like a dark tunnel. There were no lights on or under the bridge. Commencing sixteen feet east_of the east side of the new bridge and on a line with the north side of the brick pavement a fence had been erected which extended northeasterly for a distance of seventy-one feet to the north edge of the new pavement. The fence was erected to deflect traffic from the new pavement fifty-six feet wide onto the old sixteen-foot brick pavement under the bridges, as the new pavement had not been laid under the bridges north of the north tier of steel pillars and north of the old brick pavement. On the most westerly post of the fence sixteen feet east of the new bridge a red disk warning sign had been placed six feet above the pavement. It was placed so high that the light from an oncoming automobile did not reach it. On the north side of the avenue three hundred and fifty to four hundred feet east of the new bridge was a slow down sign with a street light about thirty-five feet back or west of it. That sign was not lighted or noticeable in the dark by occupants of an automobile approaching from the east.

As the automobile in question approached the bridge moving at a speed of not over thirty miles per hour the driver did not see either sign. He had not passed over the road since the construction of the new bridge had been commenced. He saw the bridge and the fence on his right. The space under the bridges was dark. When the automobile went over the six-inch inequality in the grade of the pavement it was deflected from its course so thatjt headed toward the south side of the road and the driver was thrown from the seat. At that moment an automobile was approaching from the west on its right or the south side of the road. If the automobile in question were not deflected to the north a collision with the oncoming car was imminent. The driver of the automobile testified that the last he could remember was when he was thrown up from his seat when the automobile went over the six-inch rise. It does appear, however, that the automobile was immediately swung to the right, or north, out of the course of the oncoming car, and then slightly toward the south when it came into collision with the most easterly of the north tier of steel pillars then in position under the old bridge. That pillar stood at the very northern edge of the brick pavement and about half way between the westerly side of the old bridge and the easterly side of the new bridge. That pillar was not lighted or guarded in any way.

We are asked by respondents to hold as a matter of law that no question as to their negligence was presented for the consideration of the jury, or, if such a question existed, nevertheless that the complaint was properly dismissed as the sole proximate cause of the accident was the defect in the highway for which respondents were not responsible. We are unable as a matter of law to so decide.

The six-inch defect in the road, the darkness under the bridges, the absence of adequate warning signs and the position of the steel pillars on the edge of the brick pavement only sixteen feet wide constituted a situation which the jury could have found to be dangerous and which required. the respondents to take measures to guard travelers from. A question of fact existed as to whether respondents had exercised reasonable care to protect travelers on the highway from a danger which they were parties in creating and maintaining.

We are also of the opinion that the six-inch rise in the highway cannot be said as a matter of law to have been the sole proximate cause of the accident. The jury under the facts in this case would have been justified in finding that there was more than one efficient proximate cause of the accident without which it would not have happened. (Sweet v. Perkins, 196 N. Y. 482; DeHaen v. Rockwood Sprinkler Co., 258 N. Y. 350.)

In each action the judgment should be reversed and a new trial granted, with costs to abide the event.

Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.

Judgments reversed, etc.